Indianapolis Water Co. v. American Strawboard Co.

• Decision Date: 20 October 1893
• Docket Number: 8,719.
• Citation: 57 F. 1000
• Parties: INDIANAPOLIS WATER CO. v. AMERICAN STRAWBOARD CO.
• Court: United States Circuit Court, District of Indiana

57 F. 1000

INDIANAPOLIS WATER CO. v. AMERICAN STRAWBOARD CO.

No. 8,719.

United States Circuit Court, D. Indiana.

October 20, 1893

A. C Harris and Baker & Daniels, for complainant.

Jump Lamb & Davis, George Shirts, and Kern & Bailey, for defendant.

BAKER District Judge.

The bill seeks injunctive relief to prevent the alleged pollution of the water of White river by the defendant to the damage of the complainant. It charges that the complainant is the owner of a system of waterworks constructed under statutory power for the purpose of supplying water for domestic uses and for the extinguishment of fires to the inhabitants of the city of Indianapolis, and that it is the owner of a canal by a title derived by mesne conveyances from the state. It avers that its water supply is obtained by the inflow of water into a gallery of more than 1,000 feet in length, and of considerable width, formed by an excavation made into the water-bearing gravel underlying the city, which gallery is dug alongside of, and several feet below, the bed of the river, and at a distance from it of a few feet at some points, and at a distance of more than 100 feet at other points. The inflow of water into the gallery is alleged to come from the water-bearing gravel on the one side, and from the infiltration of water from the river passing through the loose gravel on the other side. It is also alleged that at times of drouth, when the water becomes low, and at all times when large quantities of water are required to extinguish fires, the natural inflow of water into the gallery must necessarily be supplemented by letting water through a flume or waterway provided with a filter, from the river into the gallery. It alleges that the canal, which is taken from the river at the upper side of the dam at Broad Ripple, extends to a point below Washington street, in the city of Indianapolis, and that for 50 years its successive owners have continuously used the water of the canal for hydraulic purposes, and for making ice upon the canal, and for supplying its water to adjacent ponds for making ice for domestic and other uses. It also avers that it has sold under contracts running for several years, the privilege of taking ice from the canal, and of drawing water therefrom to supply ice ponds, from which it derives an annual income of $4,000. It charges that late in the year 1890, without complainant's consent, the defendant erected at Noblesville, near the bank of White river, a strawboard factory, and began to operate it in March, 1891, and has continued to do so ever since. That it daily discharges from its works 3,000,000 gallons of water, and uses 80 tons of straw, 27 tons of lime, and 5 gallons of muriatic acid, all of which are worked upon by the water passing through the factory, by which means the water passing from it into the river is charged with 67 tons of refuse matter. It is claimed that the water in the river is thereby polluted so as to become discolored, offensive to the smell and taste, unwholesome for domestic uses, and destructive of the fish in the stream. In the latter part of the spring, and again in September, 1891, the complainant notified the defendant that it was polluting the water of the river to its damage, and requested it to desist. The defendant thereupon agreed to stop the pollution of the river, and promised, if the complainant would refrain from any judicial proceedings for three weeks, that it would provide such appliances and devices as would remove the polluting substances from the water flowing from its works into the river. This, it is charged, the defendant attempted, but failed to accomplish. The case was put at issue, and a great mass of testimony was taken, and has been introduced on the hearing, to support the respective contentions of the parties. The case has been ably and elaborately argued, both orally and in printed briefs, and the court has given it attentive consideration. The testimony is too voluminous to justify, or even to permit, its review in detail, and the court must content itself with a statement of the conclusions it has reached.

The testimony, in my judgment, shows that the defendant, during the summer and fall of 1891, daily discharged from its factory, while in operation, into White river, large quantities of refuse and decomposable matter, which corrupted its waters so as to discolor the same, and to render them unfit for domestic uses and destructive of the fish in the river. This condition of the stream extended down the river to the dam and pond at Broad Ripple though the effect of these deleterious substances carried by the water in suspension and solution was somewhat less apparent at that point than in those parts of the river in closer proximity to the factory. The water in the canal, which is taken from the pond at the Broad Ripple dam, was discolored and was so injuriously affected in color and quality by pollution arising from the refuse matter passing from the factory as to be unfit for use in making ice for domestic purposes, though some of the ice formed from the water of the canal was used for the purposes of refrigeration. While the pollution of the water in the gallery arising from the operation of the factory was not great, I think it is fairly shown that at times the quality of the water was injuriously affected to such an extent as to materially and sensibly impair its fitness for drinking purposes. The water in the river was low during the greater part of the year 1891, in consequence of a severe and protracted drouth, and the injurious effects arising from...