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Pollution of Waters

co, am, water, rep, eq, stream and injury

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POLLUTION OF WATERS. A riparian proprietor is required to refrain from erect ing upon the banks of a water course any works which will pollute the water and thereby create a nuisance ; 9 Co. 59 ; 5 B. & Ald. 1; Attorney-General v. Steward, 20 N. J. Eq. 416; Call v. Buttrick, 4 Cush. (Mass.) 345 ; [1897] Ch. D. 96.

It is the right of the owner of land through which a stream flows, to have the natural flow free from pollution, as also from diver sion or obstruction ; and for an interference with this right an action will lie ; Richmond Mfg. Co. v. De Laine Co., 10 R. I. 106, 14 Am. Rep. 658 ; Holsman v. Bleaching Co., 14 N. J. Eq. 335 ; [1893] App. Cas. 691. An injury to the purity of the water which affects the riparian owner is considered an injury of the same character as an obstruction or di version of the water ; Dwight Printing Co. v. Boston, 122 Mass. 583. So one who pol lutes his neighbor's spring is liable therefor ; Ball v. Nye, 99 Mass. 582, 97 Am. Dec. 56 ; Kinnaird v. Oil Co., 89 Ky. 468, 12 S. W. 937, 7 L. R. A. 451, 25 Am. St. Rep. 545; 29 Ch. D. 115 ; and so is one who deposits filth or noxious matter on his own premises from which it percolates through the soil; Good v. Altoona City, 162 Pa. 493, 29 Atl. 741, 42 Am. St. Rep. 840 ; Robinson v. Coal Co., 57 Cal. 412, 40 Am. Rep. 118 ; 29 Ch. D. 115 ; Decatur G. L. & C. Co. v. Howell, 92 Ill. 19 ; Wilson v. New Bedford, 108 Mass. 261, 11 Am. Rep. 352; Perrino v. Taylor, 43 N. J. Eq. 128, 12 Atl. 769.

Sources of the pollution of water for which it has been held that an action would lie, are: fouling by the discharge into it of muriatic acid; 7 H. & P. 160; sulphuric acid ; 5 Ch. D. 769 ; vitriol, having a corrosive ef fect on boilers ; Merrifield v. Lombard, 13 Allen (Mass.) 16, 90 Am. Dec. 172 ; dye wares or dye liquors, madder, indigo, potash, etc.; 16 Jur. N. S. 75 ; MacNamara v. Taft, 196 Mass. 597, 83 N. E. 310, 13 L. R. A. (N. S.) 1044; heated water, which affects a stream injuriously; 3 B. & Ad. 304; 2 K. & J. 264 ; blood from a slaughter-house ; Attor ney-General v. Steward, 20 N. J. Eq. 415 ; Woodyear v. Schaefer, 57 Md. 1, 40 Am. Rep. 419 ; setting up hog-pens, or lime-pits ; Hazel tine v. Case, 46 Wis. 391, 1 W. 66, 32 Am. Rep. 715 ; Y. B. Hen. II. b. 6; Smiths v. Mc Conathy, 11 Mo. 517 ; the erection of a cess pool, placing near the water oil or manure ; Kinnaird v. Oil Co., 89 Ky. 478, 12 S. W.

937, 7 L. R. A. 451, 25 Am. St. Rep. 545; placing the 'carcass of a dead animal in the water ; State v. Wahl, 35 Kan. 608, 11 Pac. 911.

It is not always actionable to discharge into a stream waste or impure matter, but it is a question for the jury whether such use of it is, under the circumstances, rea sonable, and as a general rule the same consideration would control as in case of ob structions of the water generally. It is nec essary to take into consideration the char acter of the stream, its natural uses and the importance of the use proposed to be made of it by the party complained of and the extent and character of the injury to the other party. , See Ang. Waterc. § 140 d.

One of the rights of a riparian owner by reason of his location upon the banks of a stream is to make use of the water to such extent as he can without creating a nuisance to his neighbors or to the public. This right includes the casting of a certain amount of pollution into the stream ; 1 Farnham, Wa ters 288 ; Missouri v. Illinois, 200 U. S. 496, 26 Sup. Ct. 268, 50 L. Ed. 572, which held that a nuisance must be shown before such act will be forbidden. It is held that the legislature may forbid such pollution with out infringing the constitutional rights of the riparian owners, although no injury to the public health or comfort is shown; Dur ham V. Mills, 141 N. C. 615, 54 S. E. 453, 7 L. R. A. (N. S.) 321; State v. Paper Co., 63 N. J. Eq. 111, 51 Atl. 1019.

A riparian proprietor cannot use the wa ter in such manner as to pollute the atmos phere, and it is no defence to an action for so doing that the injury was public in its character as affecting an entire community and that it was a subject of criminal indict ment ; Story v. Hammond, 4 Ohio 376 ; and if such a condition of things cannot be rem edied by action, equity will interfere to abate the nuisance; Carlisle v. Cooper, 21 N. J. Eq. 576 ; in all these cases where the injury is continuous and irreparable so that an action for damages is not an adequate rem edy, an injunction •will be granted. See IN JUNCTION. For a collection of cases in which injunctions have been granted, see Amer. & Eng. Dec. in Eq. 648, 653.

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