Collins Mfg. Co. v. Wickwire Spencer Steel Co.

• Decision Date: 08 September 1926
• Docket Number: No. 2474.,2474.
• Citation: 14 F.2d 871
• Parties: COLLINS MFG. CO. v. WICKWIRE SPENCER STEEL CO.
• Court: U.S. District Court — District of Massachusetts

14 F.2d 871 (1926)

COLLINS MFG. CO. v. WICKWIRE SPENCER STEEL CO.

No. 2474.

District Court, D. Massachusetts.

September 8, 1926.

John P. Kirby, Wm. H. Brooks, and Brooks, Kirby, Keedy & Brooks, all of Springfield, Mass., for plaintiff.

Warner, Stackpole & Bradlee, Marvin C. Taylor, and H. E. Warner, all of Boston, Mass., for defendant.

BREWSTER, District Judge.

Plaintiff, a Massachusetts corporation, owns a paper mill on the Chicopee river, in this commonwealth. It brought, in the courts of Massachusetts, a bill in equity to restrain the defendant, a Delaware corporation, from polluting the waters of the river, and to recover damages resulting from the alleged wrongful acts of the defendant. It also, in the same proceeding, seeks to recover damages resulting from a like trespass by the defendant's immediate predecessor in title, the Wickwire Spencer Steel Corporation, a Massachusetts corporation, which, for convenience, will be hereinafter referred to as the "corporation."

The suit was removed to this court. The defendant now moves to dismiss the bill on several grounds, which may be summarized as follows: (1) On the allegations of the bill, the plaintiff does not show a case entitling it to relief in equity; and (2) it has improperly joined two causes of action in one bill.

As to the first objection, I am inclined to think plaintiff's allegations of ultimate facts are somewhat too general, not alone as to the rights asserted, but as to the character of defendant's alleged wrongful acts and the nature and extent of the injury suffered. Nevertheless I am of opinion that defendant should resort to equity rule 20 for a further and better statement, rather than ask this court to dismiss the proceedings on the ground of insufficiency of allegations. To allow the motion on that ground is to hold that the facts alleged and the facts fairly to be inferred therefrom, if established by proof, would not entitle the plaintiff to relief in equity in this court. I am not persuaded that I should so hold. The allegations, in substance and effect, show that the plaintiff is a lower and the defendant is an upper riparian proprietor; that the defendant is maintaining sewers and drains through which it discharges into a tributary of the Chicopee river, and above plaintiff's mills, acids, chemicals, and other contaminating matter in sufficient quantities to seriously impair plaintiff's rights to use the waters of the river.

While the bill does not show the nature or derivation of plaintiff's rights in the stream, it must be assumed that it enjoys those rights which the common law has conferred upon a riparian owner. If the defendant has any paramount rights, they are matters of defense.

The rights of a riparian proprietor to the use of water flowing through his land are well established and have been frequently defined by the Supreme Judicial Court of the commonwealth of Massachusetts. I need only to refer to the language of two cases. In Stratton v. Mt. Hermon Boys' School, 216 Mass. 83, 103 N. E. 87, 49 L. R. A. (N. S.) 57, Ann. Cas. 1915A; 768, the court states:

"The common-law rights and obligations of riparian owners upon streams are not open to doubt. Although the right to flowing water is incident to the title to land, there is no right of property in such water in the sense that it can be the subject of exclusive appropriation and dominion. The only property interest in it is usufructuary. The right of each riparian owner is to have the natural flow of the stream come to his land, and to make a reasonable and just use of it as it flows through his land, subject, however, to the like right of each upper proprietor to make a reasonable and just use of the water on its course through his land, and subject, further, to the obligation to lower proprietors to permit the water to pass away from his estate unaffected, except by such consequences as follow from reasonable and just use by him."

Mr. Justice Sheldon, in Parker v. American Woolen Co., 195 Mass. 591, 81 N. E. 468, 10 L. R. A. (N. S.) 584, said:

"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."

I am unable to rule as a matter of law upon the allegations of the bill that defendant's use was reasonable and lawful, or that it did not unlawfully interfere with a reasonable use by plaintiff. The wrong being a continuing one, equity will grant relief by injunction. This is clearly so in the equity court where this suit was originally brought. Merrifield v. Lombard, 13 Allen (Mass.) 16, 90 Am. Dec. 172; Stratton v. Mt. Hermon Boys' School, supra; Parker v. American Woolen Co., supra. And it is also true of the federal courts. Donovan v. Pennsylvania Co., 199 U. S. 279, 26 S. Ct. 91, 50 L. Ed. 192; Archer v. Greenville Sand, etc., Gravel Co., 233 U. S. 60, 34 S. Ct. 567, 58 L. Ed. 850.

The bill, therefore, states a cause of action cognizable in equity against the defendant for the alleged wrong done by it, since it acquired the property described in the bill from the corporation.

If the suit is properly on the equity side of the court, I take it that under the equity rules the court may retain jurisdiction of the suit for the assessment of damages, although such damages would ordinarily be determinable at law. Equity rule 23; Wright v. Barnard (D. C.) 233 F. 329.

The bill, therefore, must stand, unless the plaintiff has undertaken to join in the same bill a second cause of action, which cannot properly be joined under equity rule 26. This rule provides that a plaintiff may join in one bill as many causes of action, cognizable in equity, as he may have against the defendant. The allegations of the bill pertinent to this inquiry are:

That "the defendant acquired its lands and property in 1924 or early in 1925 from the Wickwire Spencer Steel Corporation, * * * by a reorganization or merger or consolidation of said corporation with the defendant, and by deeds and transfers to the defendant of all real estate and property of the said corporation, including land, buildings, and property" described in the bill. "The consideration of the said reorganization or merger or consolidation and of the deeds and transfers of said real estate and property was the assumption by the defendant of all the indebtedness, obligations, and liabilities of any kind or nature of said corporation, and the defendant assumed obligations of the said corporation to the plaintiff."

That the corporation "within recent years" had enlarged its plant, since which time the quantities of contaminating matter discharged into the stream through conduits maintained by the corporation had increased to such an extent as to "materially interfere with the conduct of the business carried on" by the plaintiff.

The plaintiff asks the court to assess "the damages sustained by the plaintiff by reason of" the chemicals and other contaminating matters which "have heretofore been emptied into and allowed to mingle with the waters of" the river.

As I read this prayer in connection with the allegations, the court is asked in this suit to ascertain and fix the damages...