Strobel v. Kerr Salt Co.

• Decision Date: 02 October 1900
• Citation: 164 N.Y. 303,58 N.E. 142
• Parties: STROBEL et al. v. KERR SALT CO.
• Court: New York Court of Appeals Court of Appeals

164 N.Y. 303

58 N.E. 142

STROBEL et al.

v.KERR SALT CO.

Court of Appeals of New York.

Oct. 2, 1900.

Appeal from supreme court, appellate division, Fourth department.

Action by William D. Strobel and others against the Kerr Salt Company. From a judgment of the appellate division (49 N. Y. Supp. 1144) affirming a judgment for defendant, plaintiffs appeal. Reversed.

This action was commenced in 1892 by 14 plaintiffs, who own various mills on Oatka creek, a natural stream running through the counties of Wyoming, Genesee, and Monroe, against the defendant, a domestic corporation engaged in the manufacture of salt at a point on said creek above the mills of the plaintiffs, to restrain it from diverting or polluting the waters thereof. The action is for an injunction only, as the plaintiffs in their complaint expressly reserve ‘to themselves and each of them their several damages, * * * which they will seek to recover in several actions at law in due time to be prosecuted for that purpose.’ In its answer the defendant denied that it had diverted or polluted the water of the stream, except that, in carrying on the business of manufacturing salt upon its own premises, it had made a reasonable use of a small portion of said water, and alleged that such use was necessary and lawful. Upon the trial, in 1893, it appeared that Oatka creek formerly contained pure water, which was valuable for various purposes, and especially for use in manufacturing. The plaintiffs and their predecessors in title have owned mills and manufactories situated upon said stream from 1 1/2 to 30 miles below the salt works of the defendant, and have operated them by the water thereof for many years, one at least since 1825. While they still depend mainly upon water power to run their machinery, some of them are now using steam to a certain extent. There is less water in the stream at present than there was a few years ago, and the plaintiffs attribute the deficiency mainly to the diversion of water by the salt works of the defendant and others, recently erected, while the defendant insists that it is owing to the clearing away of forests and the drainage of swamps. The evidence does not show any material change in the forests of the valley during the past 10 or 15 years, but it appears that streams in Western New York have generally lessened in size during the past 25 or 30 years. Since 1886 the defendant has carried on the business of manufacturing salt at a point upon said stream above the mills of the plaintiffs. The watershed above its works comprises about 14 square miles, and that below about 140. Its plant consists of 250 acres of land lying upon the creek, with extensive buildings, machinery, and appliances for the manufacture of salt. It has sunk seven wells upon its premises, each about 2,000 feet deep, at the bottom of which rock salt is found in two beds, which vary in depth from 30 to 60 feet. The salt is not mined, but water is pumped from a reservoir fed by a race from Oatka creek, forced down one pipe to the bed of salt, where it speedily becomes saturated, and thence, in the form of brine, is forced by hydraulic pressure up another pipe into storage tanks upon the surface of the ground. It is then drawn by gravity through a system of pipes into shallow pans and grainers, which are widely spread over the land of the defendant, where it is evaporated by exposure to the air and by means of steam and artificial heat. The function of the water is to bring the salt to the surface in solution, where it is first purified by the use of lime, and then evaporated, leaving a residuum of salt suitable for domestic purposes. All the water that is forced down into the earth and up again must be turned into vapor before the solid salt can be extracted therefrom. The water taken by the defendant for this purpose, and for use in its boilers to run the necessary machinery, is about 20,000 cubic feet, or 150,000 gallons, a day, which is more than 104 gallons per minute, and is about 4 per cent. of the flow of the stream in low water at the mills of the plaintiffs nearest the defendant's works. The part totally consumed in the boilers is very slight, as the steam is condensed into water by artificial means, and used over again. The leakage from the salt after it is removed from the evaporating pans falls upon the surface of the ground, and scales, which are a combination of lime and salt formed during the process of manufacture, are thrown from the grainers and pans upon the land of the defendant, all of which is within the drainage area of the Oatka. Much of this refuse, mixed with ashes, was used to fill up low places about the buildings so as to protect them in high water. The stream is small, but no complaint is made of any deficiency in the supply of water except during the dry season of the year, when the plaintiffs have less than they need to operate their mills, and less than they had before the erection of the defendant's works. The waters of the creek have become so salt as at times to be unfit for watering cattle as well as for many other uses, both domestic and mechanical. The effect has been to destroy the most of the fish and certain kinds of vegetation growing in the stream or upon the margin. There are 12 other salt works, somewhat widely separated, situated upon said creek below those of the defendant, which are operated in the same way, and contribute their quota of diminution and pollution. The drainage from several villages also affects the purity of the water, especially when the stream is low. Salt is the leading industry of the Oatka valley, and only one company actually mines by means of shafts sunk to the beds of salt. The salt so mined is dark, impure, and unfit for ordinary uses, unless it is dissolved, purified, and the water evaporated. The amount made daily by the defendant is about 860 barrels of pure white merchantable salt, but the full capacity of its works is nearly 1,200 barrels. It furnishes employment to more than 100 men and women. The capacity of the other salt manufactories, not including the one which mines its salt in bulk, is about 9,800 barrels daily. It requires 13.35 cubic feet of brine, of the usual strength, or more than 100 gallons, to make a barrel of salt. The effect of taking 150,000 gallons of water from the stream without restoring any part of it, or making any allowance for evaporation, would deprive the plaintiffs of 3.8 horse power during an entire day of 24 hours, or more than 9 horse power for a working day of 10 hours, assuming that the water when not in use is saved by means of dams. If the production by the other works involves a proportionate use of the water, the number of horse power taken away would be increased accordingly. Salt water rusts machinery, deranges the operation of boilers, and requires the frequent replacement of pipes, cocks, etc., although it is used generally in steam vessels on the high seas.

Upon the trial, which took place about seven years after the defendant had established its plant, the conflict in the testimony was mainly confined to the degree of diminution and pollution. The amount of diminution depends largely upon the alleged return of the water to the stream after it had been converted into vapor and allowed to escape in the air. The amount of pollution depends largely upon when the samples of water, which were analyzed by chemists, were taken from the stream, as those taken in high water contained a small amount of salt when compared with those taken during low water. The trial court found, among other facts, that ‘the configuration of the ground on either side of the stream is such that the water or vapor escaping from said boilers or grainers, as it condenses into water, naturally returns to the same stream; * * * that, in the process of manufacturing salt, some water containing salt in solution has flowed by such natural drainage from said works into said stream; that since the beginning of this action the defendant has constructed a trench between its works and the said stream, so located and constructed as to carry any water containing salt in solution that might escape by drainage from defendant's works into its said salt wells; that it has not been shown that defendant diverts the water of the stream, or that it makes any other use of it, except in the mining and manufacture of salt on its own lands, as hereinbefore set forth, or that it has caused or permitted the escape of foreign substances into said stream, except by the natural drainage from its own lands as aforesaid. The use of the waters of said creek, made as aforesaid by the defendant, is a proper and necessary use of the same upon its said premises in the transaction of its said business, and is a reasonable use thereof, such as it was lawfully entitled to make, and not prejudicial to the rights of the plaintiffs.’ It was found, as a conclusion of law, that the plaintiffs were not entitled to any part of the relief demanded in their complaint, which was dismissed upon the merits, with costs. Upon appeal to the appellate division, the judgment entered accordingly was affirmed without an opinion, except that one of the justices who dissented wrote elaborately in favor of reversal. Seven only of the plaintiffs have appealed to this court.

WATERS AND WATER COURSES-POLLUTION BY SALT MINING-INJUNCTION-PARTIES.

1. Where a salt manufacturer adjacent to a flowing stream draws water therefrom in such quantity as to diminish its flow, and in using it in his operations renders the rest of the stream so salty as to unfit it for use by lower riparian owners, such use of the stream is such an unreasonable one as entitles lower riparian owners to restrain it, since they are entitled to a fair participation in the use of such water, which cannot be abridged by the convenience or necessity of the business of an upper riparian owner.

WATERS AND WATER COURSES-POLLUTION BY SALT...