Parker v. American Woolen Co. , 195 Mass. 591 ( 1907 )

Sheldon, J.

It will be convenient in this ease to consider first the questions raised by the plaintiff’s exceptions to the master’s report and to the ruling of the single justice thereon. That ruling was in substance that one riparian proprietor has no right to discharge into a stream substances which will corrupt and foul the waters thereof to the injury of a lower riparian proprietor ; that a reasonable use of the waters of a stream by a ri.parian proprietor does not include the right to make the stream a sewer or to discharge into it such substances and things ; and that upon the facts found by the master the plaintiff was entitled to an injunction restraining the defendant from discharging noxious substances into the stream and thereby corrupting its waters and rendering them unfit for drinking, and for domestic and other uses. The master on the other hand ruled (stating together the rulings set forth in his report and those given at the request of the defendant) that the right to discharge waste into a stream and to pollute it, either mechanically or chemically, to a reasonable extent, is one of the incidents to the ownership of land on the banks ; that the general principles which govern the abstraction or diversion of water must govern in respect to the deposit of waste matter in a stream, resulting from the processes of manufacturing, that is, that a use of the water may be made which is reasonable under all the circumstances of the case; that what constitutes a reasonable use of water in a stream in respect to the deposit of waste matter therein is a question of fact to be determined from all the circumstances of the case; that every riparian proprietor on a stream has the right to have the water come to him in its natural condition except so far as it is affected by a reasonable use of their property by the owners or riparian proprietors above, and that in determining whether such use of water in a stream with respect to its pollution is reasonable all the circumstances should be considered, and more particularly the size and character of the stream, its condition, volume and rapidity, the density of the population on its banks ; the use to which the stream has been, is and can be applied, the state of improvement of the country in regard to mills and machinery, and the use of water as a propelling power; the established usages of the country in similar cases and the needs, usages and wants of the community; the necessity or importance of the use claimed by the defendant; and the extent of the benefit to him as compared with the extent of the injury to the other party.

He also ruled that one who is asserting a right which at the time does no damage, but which may operate by long continuance to destroy or diminish the right of the plaintiff, even if that right is not then exercised by the plaintiff and there is no present intention of exercising it, will be restrained by injunction but that injunction will not be granted to restrain a nuisance when the result would be inequitable.

It is difficult, if not impossible, to reconcile all the decisions which have been made upon the question of the right of riparian proprietors to use the waters of streams flowing through or along their lands. This is a common right, and each must exercise it with all due regard to the rights of others, and each must submit to that degree of inconvenience and hardship in the exercise of his rights which results from the existence of like rights in others. In such cases, each proprietor is entitled to use the stream in such reasonable manner, according to the usages and wants of the community, as will not be inconsistent with a like use by other proprietors above and below him. Cary v. Daniels, 8 Met. 466. Thurber v. Martin, 2 Gray, 894. Gould v. Boston Duck Co. 13 Gray, 442. Many of the decisions relied upon by the defendant are instances of the application of this rule. Pitts v. Lancaster Mills, 13 Met. 156. Springfield v. Harris, 4 Allen, 494. Jones v. Portsmouth Aqueduct, 62 N. H. 488. Snow v. Parsons, 28 Vt. 459. O'Riley v. McChesney, 49 N. Y. 672. Oases in which the proprietors of sawmills have been allowed to throw sawdust and similar refuse into the streams, frequently for the reason that the mills practically could not be run unless this was allowed to a reasonable extent, generally have been put upon the same ground. Haskins v. Haskins, 9 Gray, 390. Hayes v. Waldron, 44 N. H. 580. Jacobs v. Allard, 42 Vt. 303. Canfield v. Andrew, 54 Vt. 1. Prentice v. Geiger, 74 N. Y. 341. But permission to do this has been refused where it was found to make the water impure and unfit for drinking and domestic purposes; Lewis v. Stein, 16 Ala. 214; and the tendency of the later decisions is to restrict somewhat the liberality of the original rule. Lockwood Co. v. Lawrence, 77 Maine, 297. Canfield v. Andrew, 54 Vt. 1. Red River Roller Mills v. Wright, 30 Minn. 249. And in Canfield v. Andrew, supra, the court is careful to say in its opinion that no one is allowed to deposit any substance in a running stream that will pollute its waters to the injury of a lower riparian proprietor.

It is of course true that many of the uses which properly may be made of the water of a natural stream by the upper riparian proprietors will be likely to tend somewhat to defile the water. Sprague v. Dorr, 185 Mass. 10. Its use for watering cattle and for the irrigation of fertilized land, or for bathing or other domestic purposes, will-have directly that tendency. Water cannot be made to pass through the propelling machinery of a mill without becoming more or less impure; nor can the water be made available for any manufacturing use without some incidental deterioration of its quality. Surface drainage into the stream will become more and more injurious to the condition of the water as population along its banks grows denser. No one has the right to complain of injury to the quality of the water coming from' any of these causes. Wells, J. in Merrifield v. Worcester, 110 Mass. 216,219. The natural flow of surface drainage from occupied land or from streets, though much increased by the adoption of new systems, so as materially to injure the water of a brook into which it runs, will afford no cause of action to a lower riparian proprietor. Bainard v. Newton, 154 Mass. 255. Perhaps the decision in Pennsylvania Coal Co. v. Sanderson, 113 Penn. St. 126, can be justified upon the ground that the injury there complained of resulted in reality from the water pumped from the mine having drained over the surface of the ground into the brook; upon which reason indeed it is partly rested in the opinion of the court. See Crossley v. Lightowler, L. R. 3 Eq. 279.

We regard it however as settled that no riparian proprietor has the right to use the waters of a natural stream for such purposes or in such a manner as will materially corrupt it to the substantial injury of a lower proprietor, or to cast or discharge into it noxious and deleterious substances which will tend to defile the water and make it unfit for use. This was the doctrine laid down in Wood v. Waud, 3 Exch. 748. It has been maintained in the English courts. Mason v. Hill, 5 B. & Ad. 1. Pennington v. Brinsop Hall Coal Co. 5 Ch. D. 769, 772. It is affirmed in our own decisions. In Merrifield v. Lombard, 13 Allen, 16, it appeared that by the mode in which the defendant had conducted his business a large quantity of poisonous and corrosive substances was permitted to run into a stream, which defiled and corrupted the water to such an extent that the machinery in the plaintiff’s mill, lower down on the same stream, was corroded and his use of the water for proper purposes was impaired and prevented; and the defendant was enjoined from continuing so to act, and the court said: “We know of no rule or principle of law by which such a mode of appropriation of a running stream, in the absence of any proof of a paramount right or title, can be justified or excused as against a riparian owner of land on the same stream below.” In Dwight Printing Co. v. Boston, 122 Mass. 583, it was held that a riparian owner has no right, in the absence of express grant or prescription, to use the waters of a stream for dyeing or printing woollen or cotton cloths in such a way as to pollute the water and render it unfit for drinking purposes. The same doctrine has been incidentally affirmed in other decisions of this court. Washburn & Moen Manuf. Co. v. Worcester, 153 Mass. 494, 497. Walker Ice Co. v. American Steel & Wire Co. 185 Mass. 463, 471. New England Cotton Co. v. Laurel Lake Mills, 190 Mass. 48, 52. There is nothing inconsistent with it in Harris v. Mackintosh, 133 Mass. 228. It has been repeatedly and strongly declared in other States. “ Riparian proprietors, mill-owners or others, have no right to render the water of a stream unwholesome or offensive.” Richmond Manuf. Co. v. Atlantic DeLaine Co. 10 R. I. 106. Silver Spring Bleaching Co. v. Wanskuck Co. 13 R. I. 611, in which the court said: “ The right of every owner of land bordering on a stream to the use of the water is well settled; and the fact that he also owns a mill does not lessen his rights. . . . And he has a right to have the water pass his land in its natural, pure state.” Bradley v. Warner, 21 R. I. 36. Holsman v. Boiling Spring Bleaching Co. 14 N. J. Eq. 335. Chapman v. Rochester, 110 N. Y. 273. Middlestadt v. Waupaca Starch & Potato Co. 93 Wis. 1. In all these eases, it was held that the right of the lower riparian proprietor to the free use and enjoyment of the water of a natural stream extended as well to its quality as to its quantity. And see the cases cited in Gould on Waters, § 219; Wood on Nuisances, § 427, et seq.; Angelí on Watercourses, § 136, et seq. The right to use the stream to carry away mere waste matter in a reasonable manner and to a reasonable extent is not so to be extended as to include a right to discharge into the stream noxious and deleterious matter to such an extent as sensibly and materially to foul the water and destroy its purity and fitness to be used by others.

It is true that there, is in any large body of water a purifying principle which will, either by ordinary sedimentary deposit or by chemical change, obviate the evil effects which otherwise would arise from the deposit therein of some limited amount of noxious matter. Accordingly it is not for every small deposit of such matter that the law will give a remedy. This was the case in Brookline v. Mackintosh, 133 Mass. 215. There doubtless must be a material and sensible deterioration of the quality of the water; and this was recognized in the rulings made by the single justice. So in Townsend v. Bell, 167 N. Y. 462, it was found as a fact that the defendant’s use of the stream did not render its waters unfit for manufacturing, mechanical or domestic purposes. Merrifield v. Worcester, 110 Mass. 216, was decided on the doctrine that a city is not to be held in damages for having adopted an improper sewerage system.

Nor can we doubt that the plaintiff is entitled to an injunction to restrain the defendant from continuing to pollute the stream, in order to prevent it from gaining a prescriptive right, even though such pollution does not interfere with any use of the water which the plaintiff is now making. Crossley v. Lightowler, L. R. 3 Eq. 279. Pennington v. Brinsop Mall Goal Co. 5 Ch. D. 769, 772. Brookline v. Mackintosh, 133 Mass. 215, 224. And it follows from what we have already said that the plaintiff is entitled to an injunction which will restrain the defendant from discharging into the stream any noxious or offensive substances to such an amount or in such a quantity as to affect noticeably or appreciably the purity of the water when it reaches the plaintiff’s premises so as to render it materially less fit for drinking or for other uses than it was when it entered the defendant’s premises. Sampson v. Hoddinott, 1 C. B. (N. S.) 590. Merrifield v. Lombard, 13 Allen, 16. Richmond Manuf. Co. v. Atlantic DeLaine Co. 10 R. I. 106. Holsman v. Boiling Spring Bleaching Co. 14 N. J. Eq. 335. The court can fix no standard of reasonable use which will be more favorable to the defendant, or restrict any further the terms of the injunction to be issued. The defendant must at its peril see that it does not overpass this limit.

Nor can an injunction properly be refused on the ground of the magnitude of the defendant’s interests and the importance of its business. Some stress was laid upon this consideration in Pennsylvania Coal Co. v. Sanderson, 113 Penn. St. 126; but the case was decided on other grounds. The same argument was urgently pressed to no purpose in the somewhat similar cases of Lockwood Co. v. Lawrence, 77 Maine, 297; Silver Spring Bleaching Co. v. Wanskuck Co. 13 R. I. 611; and Holsman v. Boiling Spring Bleaching Co. 14 N. J. Eq. 335. And here, as in the case last cited, the effect of the injunction will not be to stop the defendant’s works or to interfere with its manufacturing industry, but simply to restrain it from discharging offensive matter into the stream and thereby polluting the waters which flow through the plaintiff’s land. Here, as in that case, it does not appear that the offensive matter cannot readily and at small expense be otherwise disposed of; if a system of filtration or other purification is necessary, the expense of this should not be thrown upon the plaintiff. Richmond Manuf. Co. v. Atlantic DeLaine Co. 10 R. I. 106. Nor is it material that other causes have contributed to the pollution of the stream. This does not excuse the defendant for its wrongdoing. Crossley v. Lightowler, L. R. 3 Eq. 279. This is the principle of Corey v. Havener, 182 Mass. 250, and Oulighan v. Butler, 189 Mass. 287, 293. Nor is this a case in which the defendant is simply discharging noxious matter into an already polluted stream. It is expressly found by the master that the water when it reaches the defendant’s premises “ is good, clean, clear brook water, fit for any kind of manufacture or for domestic use.”

The defendant has not argued that upon the facts found by the master the plaintiff is not the proper party to maintain this bill. See Starr v. Jackson, 11 Mass. 518 ; Hingham v. Sprague, 15 Pick. 102; Hastings v. Livermore, 7 Gray, 194; Cushing v. Kenfield, 5 Allen, 307; Davis v. Nash, 32 Maine, 411; Jones v. Chappell, L. R. 20 Eq. 539. And the finding of the master that the plaintiff has not lost his rights by laches was fully justified. Morse v. Hill, 136 Mass. 60, 66. Nudd v. Powers, 136 Mass. 273, 277. Leonard v. Spencer, 108 N. Y. 338. Tazewell v. Saunders, 13 Grat. 354. De Bussehe v. Ait, 8 Ch. D. 286.

Accordingly we are of opinion that the plaintiff’s exceptions to the master’s report were rightly sustained, and that the rulings of law made by the single justice upon them were substantially correct.

The defendant’s counsel have argued only certain particular questions arising upon their exceptions to the master’s report; and it is not necessary to say anything more of the other specific exceptions than that we see no reason why they should be sustained. There is no occasion as to them to add anything to what was said in the memorandum filed by the single justice.

1. The defendant’s contention that the master was not justified in finding that the defendant made an unreasonable use of the waters of the stream does not call for any special discussion. We have already shown that this is not the material question to be considered. But we ought to add that in our opinion the findings of the master were warranted by the evidence, and were as favorable to the defendant as they properly could have been made.

2. Nor, for the same reasons, can the defendant’s contention be sustained that the master should have fixed some standard of a reasonable use, and should have found how far the discharge of waste or other noxious matter by the defendant exceeded in quantity or character such a standard. This matter has been already sufficiently considered.

3. The finding by the master that the defendant had not acquired any prescriptive right to pollute the waters of the brook was justified. It may be that we could not have set aside a contrary finding; but the question was for the master.

It remains to be determined whether the plaintiff has lost or waived his right to have his damages assessed, or whether the case may now, in the discretion of the court, be sent back to the master for their assessment.

We have no doubt that it would be within the power of the court to deny the plaintiff any further hearing as to damages. Nor have we any doubt that the court has also the power to send the case-back to the master for the assessment of damages. Regis v. Jaynes Co. 191 Mass. 245. Asp v. Warren, 108 Mass. 587. It is at any rate possible that the plaintiff may be found to be entitled to large damages. If so, he ought not to be deprived of the opportunity to show this by reason of any mistake of his attorneys or of any misapprehension that may have arisen between the master and the attorneys.

Accordingly a decree should be entered that the exceptions of the defendant should be overruled, and that it be enjoined from emptying or discharging or permitting to be emptied or discharged into the brook upon its premises above the plaintiff’s premises any acids, soaps, compounds of soap, or of iron, chemicals, scourings, dyestuffs, sewage, or any objectionable substances whatever, in quantities that noticeably or appreciably affect the purity of the waters when they reach the plaintiff’s premises, or render them materially less fit for drinking, domestic or other uses at that point than they are when they enter the defendant’s premises,'and that the plaintiff be permitted to move for a recommitment of the' case to the master for an assessment of damages, if he desires so to do.

So ordered.