That one in possession of real estate may recover damages for wrongful pollution of a spring without showing title to the property is held in Long v. R. Co., 128 Ky. 26, 107 S. W. 203, 13 L. R. A. (N. S.) 1063, 16 Ann. Cas. 673.
The weight of authority is in favor of the doctrine that an action by the lower riparian owner will lie for the pollution of the stream by a discharge into it of refuse water from a mine, and that such action may be enjoined; Beach v. Zinc Co., 54 N. J. Eq. 65, 33 Atl. 286, where it was expressly held that it was no defence, that the pollu tion was a natural and necessary result of mining operations prosecuted in the ordinary way. In this case the defendant was not a riparian owner. The decree was affirmed by the court of appeals where Garrison, J., thus stated the conclusion: "A non riparian mine-owner may not artificially cause the injurious discoloration of a nat ural water course, if, by the use of prac ticable means within his knowledge and under his control, he may carry on his min ing operations without injury to the right of others,—a paraphrase of the maxim, "Sic utere tuo ut alienum non /mans." The contrary doctrine was held in Penn sylvania in the case of Pennsylvania Coal Co. v. Sanderson, 113 Pa. 126, a decision which was criticised and expressly disap proved in the above case ; and there were two Pennsylvania cases contra, Sanderson v. Coal Co., 86 Pa. 401, 27 Am. Rep. 711, and Pennsylvania Coal Co. v. Sanderson, 94 Pa. 302, 39 Am. Rep. 785, which were overruled in the third case by a bare majority of the court. Referring to Pennsylvania Coal Co. v. Sanderson, Lord Shand, in [1893] App. Cas. 691, says : "This circumstance and the grounds of the judgment seem to me to be sufficient to deprive the case of any real weight." One other case seems in a measure to follow the Pennsylvania case ; Barnard v. Sherley, 135 Ind. 547, 34 N. E. 600, 35 N. D. 117, 24 L. R. A. 568, 41 Am. St. Rep. 454; where it was held that one who sinks an artesian well on his own land, and uses the water to bathe the patients in a sanitarium erected by Wm on said premises, is not lia ble to injunction and damages for allowing the water, after such use, to flow into a stream which crosses the land of an adjoin ing owner, and is the only natural and avail able outlet." Of this case it is remarked: "There were, however, many features to dis tinguish this from the Sanderson case, so that the adoption of the language of the lat ter was unnecessary. In the first place, the pollution was slight; in the second, before the water reached the plaintiff's premises, it was further defiled by passing through a city ; either of which would tend to defeat the claim, apart from all other considera tions;" 3 Eng. & Am. Dec. in Eq. 652, by
Henry Budd.
The same writer draws attention to the fact that "even in Pennsylvania, the doc trine of the Sanderson case is carefully limited to the natural drainage of the mine water ; and any other means of getting rid of it will be enjoined ;" id., citing Getting v. Imp. Co., 7 Kulp (Pa.) 493. See, also, Long v. Trexler, 8 Atl. 620. It has been intimated that even the Pennsylvania doctrine uphold ing the right to pollute a water course with mine water does not apply to streams from which a municipal water supply is taken; Com. v. Russell, 172 Pa. 506, 33 Atl. 709; and a contrary decision was rendered by a lower court in Union Water Co. v. Oil Co., 21 Pittsb. L. J. (N. S.) 159.
In an action to recover damages for foul ing a stream so as to constitute a nuisance, it is no defence that plaintiff's own acts con tributed to the injury ; Bowman v, Hum phrey, 132 Ia. 234, 109 N. W. 714, 6 L. R. A. (N. S.) 1111, 11 Ann. Cas. 131; Philadelphia & R. R. Co. v. Smith, 64 Fed. 679, 12 C. C. A. 384, 27 L. R. A. 131.
The right of the lower riparian proprie tor to have the use of the stream unim paired, must be adjusted with due regard the rights possessed by the upper ripa rian owner to use the stream for the proper purposes, such as casting sewage or waste therein; Prentice v. Geiger, 74 N. Y. 341; Haskell v. New Bedford, 108 Mass. 208; Hayes v. Waldron, 44 N. H. 580, 84 Am. Dec. 105; and the necessary result of the legiti mate use of a stream for irrigation, manu facturing, and domestic purposes, will have a tendency, with the natural increase of population, to render the stream more im pure ; see Merrifield v. Worcester, 110 Mass. 221, 14 Am. Rep. 592; Pennsylvania Coal Co. v. Sanderson, 113 Pa. 126, 6 Atl. 453, 57 Am. Rep. 445; and the courts will not interfere by injunction with extensive manufacturing enterprises until satisfied from all the cir cumstances that there is no adequate rem edy at law, and that the failure to interfere will result in irreparable injury ; New Bos ton C. & M. Co. v. Water Co., 54 Pa. 164. That a creamery or tannery or other indus trial plant is a perfectly legitimate enter prise, or one of great convenience and bene fit, is not a defence to an action for polluting a stream, but it may still be a nuisance for which an action will lie, though the utmost care has been taken to avoid all just cause of complaint; Hauck v. Pipe Line Co., 153 Pa. 366, 26 Atl. 644, 20 L. R. A. 642, 34 Am. St. Rep. 710.