Worthen & Aldrich v. White Spring Paper Co. , 74 N.J. Eq. 647 ( 1908 )

Howell, V. C.

During the hearing and upon the argument the defendant’s counsel laid much stress upon the manner in which the complainant had set out the measure and extent of its rights in the stream, holding that it had limited them by claiming merely that it was entitled to have the waters of the stream flow through and past its premises unimpaired in quantity and in quality except by the reasonable and lawful use of the same by the upper riparian owners, and that the rise which the defendant had made of the stream, permitting small quantities of cotton fibre to pollute it, was consistent with a reasonable and lawful use, and that thus the complainant had stated itself out of court. This contention, however, is not entitled to any force as a defence 10 the fact of pollution. The defendant is, of course, entitled to a reasonable use of the waters of the stream, but that use must be lawful and must be exercised with a due regard to the lawful rights of lower proprietors, and especially is this true with regard to the charge of pollution. In Holsman v. Boiling Spring Bleaching Co., 14 N. J. Eq. (1 McCart.) 335 (1862), complaint was made of the pollution of a small stream which ran through'the complainant’s land and emptied into the Passaic river only a short distance above the mouth of the Yantacaw river. The complaint was that the defendant had permitted large quantities of chemical matter and other impurities to be discharged from its works into the stream above the land of the complainants, and that the water was thereby filled with offensive matter, was discolored and polluted and rendered unfit for all domestic purposes,' for procuring ice or watering cattle; that it killed the fish and produced offensive odors which invaded the air of the neighborhood and penetrated the complainants’ dwelling, so that the complainants had been compelled to refrain from all use of the water for family or other purposes. Chancellor Green says: “The defendants have a right to use the water upon their oto soil in such manner as they may deem for their interest, provided they discharge it upon the soil of the complainants in its accustomed channel pure and unpolluted.” ' And he held that the complainants were entitled to an injunction to restrain defendants from discharging offensive matter into the stream and thereby polluting the waters which flowed upon the complainants’ laird.

In Acquackanonk Water Co. v. Watson, 29 N. J. Eq. (2 Stew.) 366 (1878), an attempt was made by a private water company to take water from a stream which supplied the defendant’s bleachery, as a source of water-supply for the city of Passaic, it undertaking to furnish to the complainant another source of supply from another stream. The court (Honorable Amzi Dodd, special master, writing the opinion) granted the injunction prayed for upon the ground that no proprietor has a right to use the water of a running stream to the prejudice of other proprietors above or below him unless he has a prior right to divert _ it or a title to some exclusive enjoyment; that he has no property in the water itself, but a simple usufruct while it passes along, and that he must so use and apply the water as to work no material injury or annoyance to his neighbor below him, who has an equal right to the subsequent use of the same water. The decree in'this case was affirmed by tire court of errors and appeals. The same doctrine was laid down by Vice-Chancellor Pitney, in Beach v. Sterling Iron and Zinc Co., 54 N. J. Eq. (9 Dick.) 65 (1895); affirmed, 55 N. J. Eq. (10 Dick.) 824, in the opinion in which he cites all the leading English and American cases on the subject, and in Attorney-General v. Paterson, 58 N. J. Eq. (13 Dick.) 9 (1899); Simmons v. Paterson, 60 N. J. Eq. (15 Dick.) 390 (1899), and in a masterly opinion by Judge Vann, in Strobel v. Kerr Salt Co., 164 N. Y. 303, in which the New York court of appeals followed Vice-Chancellor Pitney’s ruling in the Beach Case, and refused to recognize the Pennsylvania doctrine, which relaxes the ordinary rules governing the rights of riparian owners in favor of great industries engaged in developing the natural resources of the country.

An appreciable discharge, into a natural water course, of any noisome substance is within the prohibition of the law. In the case at bar the pollution consisted of placing in the stream large quantities of waste cotton fibre, the particles of which varied in length from onc-thirty-second to three-eighths of an inch and at times the deposit was in such quantities as to be actually visible to the eye in the discoloration of the water of the canal and river and in the deposit of quantities of the same material on the ground forming the banks and beds of these waterways. And at other times it was deposited in such large quantities as to be visible in the tail-race and in the stream in floating flocks or lumps, and at other times it was deposited in large quantities upon the screens and other apparatus and devices which were placed by the complainant in the canal for the purpose of screening tire water before it went to the complainant’s bleachery. There is no question on the evidence of the deleterious character of the polluting material, nor of the fact that it appeared in the waterways above described in such quantities as to seriously damage the complainant in the enjoyment of its property, nor of the further fact that it appeared in the washing machine in the works of the complainant in damaging quantities, and at times to such extent as to compel the complainant to shut down portions of its machinery and discontinue portions of its works. This was not and is not either a reasonable or a lawful use of the waters of the river, and at the time the bill was filed, in my opinion, the facts and circumstances warranted the complaint which the complainant made in the court.

Pending the suit the defendant introduced several devices to prevent the pollution of the stream bj its waste water charged with cotton fibre, and in its answer tenders to the complainant the issue whether these devices are efficient. Their efficiency is denied by the amended bill. The first device that was installed, after trials of apparatus which' was of no advantage whatever, was a machine called a saveall machine. This seems not to have been sufficient in itself to stop the pollution of the stream, and subsequently large settling basins were constructed into which the waste water from the paper mill was conducted, the design being that the waste water should remain in the settling basins for a sufficient length of time to allow the fibrous matter to precipitate. While the complainant vigorously denies the efficiency of this device, it does appear that there has not been so much cause of complaint as there was before they were constructed, and that the efforts of the defendant, aided by those of the complainant, have to an extent stopped the introduction of the cotton fibre into the bleachery of the complainant; but if the law is as it is above stated there seems to be no reason why the complainant should be put to any expense whatever in fending against the polluting material in the stream and canal, or be under an obligation to make any suggestions or give any advice as to proper methods to be adopted. If it is entitled to have the water come to it in an unpolluted condition, it ought not to be compelled to use any precautions to prevent the polluting material from entering iis bleachery; bat if it were proved that the settling basins or sumps as they are now arranged were entirely sufficient to restrain the polluting material from flowing into the stream, yet the complainant is, under the circumstances, still entitled to a continuance of the injunction which is now in force against the defendant. There was much evidence in the case relating to the character of the construction of these settling basins. They were described and illustrated by diagrams by a surveyor from actual measurements made by him; they were further described by expert engineers and criticised because of their flimsy and unsubstantial character. They consist of logs piled up against stakes which are driven in the ground, and are lined with coal ashes. They are liable to give way by reason of the breaking of the stakes or by the action of the frost, and from other causes which are described by the witnesses. If they are efficient to restrain the cotton fibre from entering the stream they ought to be kept in repair or made permanent constructions so as to prevent deleterious matter from ever getting to the complainant’s property. The case is in this aspect controlled by Beach v. Sterling Iron and Zinc Co., 54 N. J. Eq. (9 Dick.) 65. There similar settling basins had been constructed, but the vice-chancellor determined that it was impossible to say that there would be no further incursions of the muddy water, that without a decree and injunction the defendant would be at liberty to discontinue the use of these safetjr devices and permit muddy water again to flow into the complainant’s supply as it had done. There is an additional argument to the same effect in this case, and that is the unstable construction of the settling basins. Without a decree and an injunction the defendant would not only be at liberty to discontinue the use of the settling basins, but would also be at liberty io allow them to become absolutely inefficient for the purpose for which they were designed.

The claim made by the defendant that the complainant’s remedy for the injury is by common law action for damages is effectually disposed of by the Beach Case.

Lastly, the defendant claims that inasmuch as its mill is an ancient mill and was severed from the common ownership by the common proprietor at an earlier date than the conveyance by him of the property of the complainant, an equity arises in favor of the more ancient structure and the earlier conveyance. It must be remembered that the stream in question is a natural water course, and that apart from interfering grants riparian proprietors have correlative rights in the waters of the stream, these rights being usufructuary. The fact that Kingsland made the earlier conveyance of the paper mill, retaining the tract lower down the stream now belonging to the complainant, cannot interfere with the rule of law, nor, indeed, could anything interfere with it except a positive reservation by Kingsland in the earlier conveyance of rights in the tract of land below.- This question was settled in this state in 1854 in Brakely v. Sharp, 10 N. J. Eq. (2 Stock.) 206, upon a state of facts touching the relations between upper and lower proprietors resembling very much of the facts in this case. There the earlier conveyance from the common proprietor covered the tract furthest up stream. In the opinion Chancellor Williamson lajrs down the rule as follows: “There is a difference between a natural water course and an artificial construction for the conveyance of water. A is the owner of two farms through which runs a natural stream; he sells to B the farm upon which the water course has its origin. A is entitled to have the water flow upon the, farm which he reserves the same .as he enjoyed it when he severed his title, because the water course did not begin by the consent or act of the parties, but ex jure, vaiurce.” citing Hazard v. Robinson, 3 Mason 272.

Kingsland might have reserved a right which would have created an easement in favor of the upper proprietor, but it cannot be said that the situation now in the present state of affairs is governed by the law of easements. A man can have no easement in his own lands. The owner of the Kingsland paper mill could not have an easement in the property now owned by the complainant as long as the title was in himself. There is no prescriptive right claimed, nor, indeed, is there any evidence of a prescriptive right before the court.

The case differs from McConnell v. American Bronze Powder Co., 41 N. J. Eq. (14 Stew.) 449; affirmed, 44 N. J. Eq. (17 Stew.) 603. There the nuisance complained of was the raising of a dam. Pending the litigation the -dam was cut down to its accustomed height, and thus the objection was wholly removed, and this having been established, the case resolved itself into a mere question of costs. It will lie perceived that the difference between the two cases is essential and fundamental. In the McConnell Case the cause of action was abated; in the present ease it is clearly in a position to work harm to the complainant by simple inattention to or negligence of the conditions surrounding the _ situation.

I will advise a decree declaring that the complainant has a right to have the water of the river and its subsidiary waterway, the canal, flow to and upon the premises in its natural and unpolluted state and condition, and that as to the pollution by the defendant, it be restrained from further discharging into the waters of the river waste material or foreign substance of any kind calculated to pollute or contaminate the waters thereof.