(dissenting.) The learned trial judge found that in operating their factory the defendants occasionally discharged into this stream colored water from their rinsing vats, whereby the water became colored, and in that condition flowed through the lands of the plaintiff; that such discharge is necessary to the convenient and successful operation of such factory, and that the defendants are greatly benefited by such use of the stream; that this stream is not put to any use by the plaintiff, and the value of his lands is not materially affected, and the plaintiff has not been, and is not now, and is not likely to be, in any way injuriously affected by such use of the water of this stream by the defendants; and that such use of the stream by the defendants was, under the circumstances of this case, reasonable, and in no way harms the plaintiff. The plaintiff excepted to each finding of fact of the learned judge separately, on the ground that there is no evidence to support it; also to certain refusals to find, as requested by the plaintiff, and to his conclusions of law.
Whether or not the plaintiff had a right by this action to perpetually enjoin the defendants from the use of this water in the manner indicated, seems to depend upon the question whether such use was, under the circumstances, a reasonable use of this stream by the defendants. This reasonable use must not impair the just right of other riparian owners, who are also entitled in like manner to reasonable use of the stream, without any unreasonable impairment in quantity or qviality. The rule upon this subject which seems to be deducible from the adjudged cases is stated by Angelí on WaterCourses as follows: “It is clearly the duty of riparian proprietors upon a water-course to refrain from erecting upon its banks any works which render the water unwholesome or offensive.” Ang. Water-Courses, § 136. But the application of this rule does not prevent the owner of land over which a stream of running water flows from the reasonable use of the same for agricultural, domestic, mechanical, or manufacturing purposes, even though such use may in some slight degree lessen the quantity or deteriorate, the quality of the water which flows from his to his adjoining neighbor’s land. The exact extent to which the use of a riparian owner may diminish the quantity or impair the quality of water flowing upon the lands of an owner below is, within the authorities, difficult to determine, and its determination, it seems to me, must depend upon the circumstances of each particular case; and while a gross and palpable violation of the rights of riparian owners, lower on the stream, would furnish a clear right of action for damages, and perhaps a ground for equitable interference by injunction, still, if the rule were carried to the extent that slight diminution of quantity or slight deterioration of quality furnished in all cases a right of action, the ordinary use of running streams would be greatly diminished, and the owners of lands through which they flow be deprived of much of their value. In Honsee v. Hammond, 39 Barb. 95, Miller, J., in laying down the rule upon this subject, uses this language: “Although they [defendants in that case] had the right to use the water for all legitimate and proper purposes, they were not authorized to injure the owner on the .stream below.” In Merrifield v. Worcester, 110 Mass. 219, it was held that the natural right of riparian proprietors to have the water of a stream descend to him in a pure state, fit to be used for the various purposes to which he may have occasion to apply it, must yield to the equal rights of those who happen to be above him on the stream. *214Their use of the stream for mill purposes, for irrigation, watering cattle, and the manifold purposes for which they may lawfully use it, will tend to render the water more or less impure, cultivating and fertilizing the lands bordering on the stream, and in which on its sources their occupation by farmhouses and other erections will unavoidably cause impurities to be carried into the stream. As lands are subdivided, and their occupations and use become multifarious, these causes will be rendered more operative, and their effect more perceptible; but, so far as that condition results only from the reasonable use of the stream in accordance with the common right, the lower riparian proprietor has no remedy, and that rule seems substantially to have been adopted in this state. In Bullard v. Manufacturing Co., 77 N. Y. 525, the court lays down the rule as follows: “The maxim, aqua currit et debet currere ut currere solebat, prescribes the general rule in respect to running streams, but it is to be interpreted and applied in connection with another rule, which is well settled: that each riparian owner lias a right to a reasonable use of the water. Injury to one proprietor in consequence of the use of the water of another is not an invariable test of the right of such use;” and, after giving instances illustrating the rule and exceptions, the court adds: “ The question of reasonable use must frequently arise between mill-owners on streams which afford a power available for the propulsion of machinery. The maxim that water should be allowed to flow as it is wont to flow, if strictly construed and applied, would prevent the use of streams for manufacturing purposes. The question of reasonable use is ordinarily a question of fact to be determined upon a consideration of all the circumstances.”
The learned trial court, who in the first instance was charged with the duty of determining this question of fact, has expressly found that the defendants’ use of the stream is, under the circumstances, reasonable, and in no way harms the plaintiff. In reaching this conclusion, he might properly take into account and give due weight to the fact that the defendants had established their plant and were conducting their business in a manner that made their use of the stream in this way an apparent necessity at the time of the purchase of the plaintiff’s premises by him, especially when the relief sought by the plaintiff would tend to a complete destruction of the defendants’ business. The injury which the plaintiff has or will sustain by reason of the acts of the defendants complained of in this action bears no comparison to that which would be inflicted upon the defendants by the granting of a perpetual injunction, and while the law will not sanction a wrong or protect a wrong-doer in its commission, even though the injury inflicted is slight and the advantage to the wrong-doer is large, (Corning v. Nail Factory, 40 N. Y. 204,) yet the process of injunction, as said by the learned trial judge, should always be applied with caution, and only when there is established a clear right to such relief, and the apparent danger is imminent. Equity employs the process of injunction to prevent an irreparable injury only. Drake v. Railroad Co., 7 Barb. 508. McLaury v. Hart, 121 N. Y. 636, 24 N. E. Rep. 1013; Morgan v. City of Binghamton, 102 N. Y. 500, 7 N. E. Rep. 424. In Purdy v. Railroad Co., (Com. Pl. N. Y.) 13 N. Y. Supp. 295, it was held that, in order to give the plaintiff a right to injunctive relief, it is necessary to establish a substantial injury, and not merely a technical wrong, calling for nominal damages; and this, whether the injury be single or continuous, and whether it be the subject of only one or of successive actions. In McLaury v. Hart, supra, Finch, J., says: “Equity wields the powerful process óf injunction to prevent irreparable injury.” In the case at bar the court has found that the plaintiff is in no way harmed by the defendants’ use of this water. Whether this court, as an original question, would have reached the same conclusion is unnecessary to inquire here. It is quite manifest that the plaintiff has suffered no irreparable injury, nor does it appear from the evidence that any such injury is imminent. But it is urged by the *215plaintiff that, if the injunction is not granted restraining the defendants from this use of the water of this stream, there is danger of the continued use in this manner ripening into a prescriptive right in favor of the defendants. If this were so, we do not think that a sufficient reason for granting an injunction, under the circumstances of this case. If the plaintiff’s legal rights are invaded, their assertion and establishment in an action at law would effectually prevent the attaching of a prescriptive right to this use of the water, and protect the plaintiff from any such apprehended consequence. I am, for the reasons stated, led to conclude that the plaintiff’s complaint was properly dismissed.