Inhabitants of Brookline v. Mackintosh

• Decision Date: 05 July 1882
• Parties: Inhabitants of Brookline v. Charles G. Mackintosh
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

133 Mass. 215

Inhabitants of Brookline v. Charles G. Mackintosh

Supreme Court of Massachusetts

July 5, 1882

[Syllabus Material] [Syllabus Material] [Syllabus Material]

Norfolk. Bill in equity, filed November 23, 1880, for an injunction to restrain the defendant from corrupting and polluting the waters of Charles River, from which the plaintiff takes water for domestic use by its inhabitants. Hearing before Soule, J., who, at the request of the parties, reported the case for the consideration of the full court, in substance as follows:

On May 7, 1872, the plaintiff town accepted the St. of 1872, c. 343, and under the authority given by it, by a vote passed on April 22, 1874, a copy of which was duly recorded in the registry of deeds for Norfolk county within sixty days thereafter, declared its intention to take daily from Charles River one million five hundred thousand gallons of water for the supply of its citizens.

In the exercise of its powers under the act, the plaintiff town, in 1873, purchased certain lands in Boston, bounded on Charles River, and extending to the middle thereof; and, at about the same time, took certain other lands adjoining, and bounded by and extending to the middle of the river, for the general purposes of its water supply, and it has ever since been, and still is, in possession of all said lands, which have a frontage of several thousand feet on Charles River, and contain from twenty to thirty acres.

The town does not now obtain water by pumping or by other means directly from the river, but obtains it, and has always obtained it, by pumping from an underground trench, or filtering gallery, into which the water flows by percolation through the walls of the gallery, chiefly from the landward side, but in part from the river through the natural wall of gravel and other material between the gallery and the stream. A trench opening directly into the river, and running nearly parallel with the gallery, at an average distance of about thirty feet from it, and at the nearest point fifteen feet from it, aids in bringing a supply of water from the river, by lessening the thickness of the intervening wall or filter between the gallery and the water of the stream.

The town uses about one million two hundred thousand to one million four hundred thousand gallons of water daily in the summer season, and about eight hundred thousand gallons daily in the winter season. The flow of the river at a point about four thousand feet above where the gallery is situated, is from nine million to ten million gallons daily.

There is no purpose on the part of the town at present to obtain a supply of water directly from the river, without the intervention of the earth-filter; but it will probably be necessary for it to enlarge its supply by some means within a short time, perhaps within a year or two.

About six weeks before the bill was filed, the defendant began to carry on the business of wool-pulling in a building situated in Dedham, in the county of Norfolk, on the banks of Charles River, at a point about four thousand feet up stream, by the course of the river, from the trench, filtering gallery and pumping station of the plaintiff. He operates on about two hundred sheep-skins or pelts daily, all of which are soaked in vats under the building, into and from which the water of the river flows freely, for one night, after which each skin is treated with a mixture of lime and red arsenic, which is permitted to remain on it for some hours, after which the skin is washed in the vats, into which the mixture of lime and red arsenic, except such small part of it as has been absorbed by the skin, passes and falls to the bottom of the river. About one and one third pounds of red arsenic is used daily. It is a harmless substance, so far as any effect on the water is concerned, if pure; in fact, it is never absolutely pure, but, as bought and sold in commerce, is always mixed with a small proportion of white arsenic, which is an active poison. In the prosecution of the work of wool-pulling, more or less animal matter, in a state of partial decomposition, either in a solid form or mixed with fluid, is thrown into the river. The quantity is sufficient to defile the water at the factory where the work is done, and make it unfit for domestic use there, but it is not sufficient to produce any perceptible effect on the quality of the water in the river at or opposite to the point where the plaintiff's works are situated.

No trace of arsenic can be discovered by chemical analysis in the water of the river at or opposite to the plaintiff's works. In times of freshet, when the bed of the river is specially disturbed, it would be possible that small quantities of white arsenic might be carried, suspended in the stream, as far down as the plaintiff's filtering gallery, and even farther.

As the plaintiff now obtains its water by filtration into the gallery from which it is pumped, no damage is done by the defendant to the quality of the water which it uses; and no damage is done to the property of the town, either in the value of the land which it purchased, as distinguished from the value of its waterworks, or in the value of the waterworks.

If the plaintiff should obtain its water for use by pumping directly from the stream, without the intervention of a filter, there would be a possibility, especially in times of freshet, that some poisonous arsenic, put into the water by the defendant, would be carried into the water used by the town, but it would necessarily be in very small quantities, suspended in the water.

According to chemical analysis, the water of the river is now of substantially the same quality as it was ascertained to be before the plaintiff decided to take the water under the St. of 1872.

The sewage of several towns is discharged into the river twenty miles above the defendant's factory, but it did not appear that the water of the river opposite the plaintiff's works is injuriously affected thereby. It would not be certain that, because the chemists failed to detect the presence of sewage or decayed animal matter in the water, it was not in fact there.

The capacity of the defendant's factory is about five times the amount of work now done there. The amount of arsenic used, and of animal matter cast into the stream, would increase indirect proportion with the increase of work done; and the probability of poisonous arsenic being carried into the water used by the plaintiff, if the supply were obtained by pumping directly from the stream, without the intervention of a filter, would be increased in the same proportion.

In the year 1850, one Joseph H. Billings engaged in the business of wool-pulling at a point on the bank of Charles River directly opposite the defendant's factory, and carried it on there till 1859, in substantially the way in which the defendant now carries it on. On August 29, 1859, Billings bought land where the defendant's factory now stands, and there built the factory in a manner specially adapted to the business of wool-pulling, and then made an arrangement with the defendant under which they carried on that business together, till Billings died, in 1874, after which the defendant continued the business, as surviving partner, till 1875, when his brother hired the factory from the administrator of Billings, and continued the business in person till February 1878, when he left the business in charge of his servants, who finished manufacturing the stock on hand in July 1878, after which no work was done there till the defendant began his business in October 1880. When the defendant's brother left the factory, in February 1878, he went into the employ of another, in the same business, in another town, intending to remain with him but a short time, and expecting at some time to resume business at the factory. In June 1878, he bought the factory and land at an administrator's sale, and received a quitclaim deed of it, which has never been recorded. In the summer of 1878, the windows of the factory were broken by trespassers, who did other damage, and carried away all the movable property about the premises; the brother of the defendant boarded up the doors and windows, and it remained unoccupied till September 1880, before which time it had become ruinous, and unfit for use. At that time, he began to repair it, and let it to the defendant.

The defendant has never had a license from the selectmen of Dedham for any of his proceedings. The business done there creates an offensive odor, which is perceptible at times at a distance of half a mile from the factory.

Before the defendant began business, in November 1880, he was notified by the water board of Brookline, that, if he began to wash sheep-skins in the river, an attempt would be made to obtain an injunction against him.

There was no evidence as to who owned the land which the plaintiff town purchased, between 1859 and the time of the purchase, other than the grantors of the town, if anybody, nor whether such owners were or were not persons sui juris, nor whether they or the grantors of the town had actual notice of the carrying on of the business by Billings and the defendant, except so far as such knowledge might be inferred from the character of the business, and the fact that it was carried on openly. The judge found that actual knowledge by the owners of the carrying on of the business was not proved; and reserved the question whether, in this state of evidence, there was a presumption of law that such owners had such knowledge.

Such decree was to be entered as to the full court should seem proper.

Bill dismissed.

M. Williams, Jr. & C. A. Williams, for the plaintiff.

A. Churchill & C. A. Mackintosh, for the defendant.

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