Parker v. American Woolen Co.
| Decision Date | 28 May 1907 |
| Citation | 81 N.E. 468,195 Mass. 591 |
| Parties | PARKER v. AMERICAN WOOLEN CO. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Frederick N. Wier and George A. Sanderson, for plaintiff.
Francis W. Kittredge, Sherman L. Whipple, and Alexander Lincoln, for defendant.
It will be convenient in this case to consider first the questions raised by the plaintiff's exceptions to the master's report and to the ruling of the single justice thereon. That ruling was in substance that one riparian proprietor has no right to discharge into a stream substances which will corrupt and foul the waters thereof to the injury of a lower riparian proprietor; that a reasonable use of the waters of a stream by a riparian proprietor does not include the right to make the stream a sewer or to discharge into it such substances and things as materially to diminish its purity and that upon the fact found by the master the plaintiff was entitled to an injunction restraining the defendant from discharging noxious substances into the stream and thereby corrupting its waters and rendering them unfit for drinking and for domestic and other uses. The master on the other hand ruled ( together the rulings set forth in his report and those given at the request of the defendant) that the right to discharge waste into a stream and to pollute it, either mechanically or chemically, to a reasonable extent, is one of the incidents to the ownership of land on the banks; that the general principles which govern the abstraction or diversion of water must govern in respect to the deposit of waste matter in a stream, resulting from the processes of manufacturing, that is, that a use of the water may be made which is reasonable under all the circumstances of the case; that what constitutes a reasonable use of water in a stream in respect to the deposit of waste matter therein is a question of fact to be determined from all the circumstances of the case; that every riparian proprietor on a stream has the right to have the water come to him in its natural condition except so far as it is affected by a reasonable use of their property by the owners or riparian proprietors above, and that in determining whether such use of water in a stream with respect to its pollution is reasonable all the circumstances should be considered, and more particularly the size and character of the stream, its condition, volume and rapidity, the density of the population on its banks; the use to which the stream has been, is and can be applied; the state of improvement of the country in regard to mills and machinery, and the use of water as a propelling power; the established usages of the country in similar cases and the needs, usages and wants of the community; the necessity or importance of the use claimed by the defendant; and the extent of the benefit to him as compared with the extent of the injury to the other party. He also ruled that one who is asserting a right which at the time does no damage, but which may operate by long continuance to destroy or diminish the right of the plaintiff, even if that right is not then exercised by the plaintiff and there is no present intention of exercising it, will be restrained by injunction; but that injunction will not be granted to restrain a nuisance when the result would be inequitable.
It is difficult, if not impossible, to reconcile all the decisions which have been made upon the question of the right of riparian proprietors to use the waters of streams flowing through or along their lands. This is a common right, and each must exercise it with all due regard to the rights of others, and each must submit to that degree of inconvenience and hardship in the exercise of his rights which results from the existence of like rights in others. In such cases, each proprietor is entitled to use the stream in such reasonable manner, according to the usages and wants of the community, as will not be inconsistent with a like use by other proprietors above and below him. Cary v. Daniels, 8 Metc. 466, 41 Am. Dec. 532; Thurber v. Martin, 2 Gray, 394, 61 Am. Dec. 468; Gould v. Boston Duck Co., 13 Gray, 442. Many of the decisions relied upon by the defendant are instances of the application of this rule. Pitts v. Lancaster Mills, 13 Metc. 156; Springfield v. Harris, 4 Allen, 494, 81 Am. Dec. 715; Jones v. Portsmouth Aqueduct, 62 N.H. 488; Snow v. Parsons, 28 Vt. 459, 67 Am. Dec. 723; O'Riley v. McChesney, 49 N.Y. 672. Cases in which the proprietors of sawmills have been allowed to throw sawdust and similar refuse into the streams, frequently for the reason that the mills practically could not be run unless this was allowed to a reasonable extent, generally have been put upon the same ground. Haskins v. Haskins, 9 Gray, 390; Hayes v. Waldron, 44 N.H. 580, 84 Am. Dec. 105; Jacobs v. Allard, 42 Vt. 303, 1 Am. Rep. 331; Canfield v. Andrew, 54 Vt. 1, 41 Am. Rep. 828; Prentice v. Geiger, 74 N.Y. 341. But permission to do this has been refused where it was found to make the water impure and unfit for drinking and domestic purposes. Lewis v. Stein, 16 Ala. 214, 50 Am. Dec. 177. And the tendency of the later decisions is to restrict somewhat the liberality of the original rule. Lockwood Co. v. Lawrence, 77 Me. 297, 52 Am. Rep. 763; Canfield v. Andrew, 54 Vt. 1, 41 Am. Rep. 828; Red River Roller Mills v. Wright, 30 Minn. 249, 15 N.W. 167, 44 Am. Rep. 194. And in Canfield v. Andrew, supra, the court is careful to say in its opinion that no one is allowed to deposit any substance in a running stream that will pollute its waters to the injury of a lower riparian proprietor.
It is of course true that many of the uses which properly may be made of the water of a natural stream by the upper riparian proprietors will be likely to tend somewhat to defile the water. Sprague v. Dorr, 185 Mass. 10, 69 N.E. 344. Its use for watering cattle and for the irrigation of fertilized land, or for bathing or other domestic purposes, will have directly that tendency. Water cannot be made to pass through the propelling machinery of a mill without becoming more or less impure; nor can the water be made available for any manufacturing use without some incidental deterioration of its quality. Surface drainage into the stream will become more and more injurious to the condition of the water as population along its banks grows denser. No one has the right to complain of injury to the quality of the water coming from any of these causes. Wells, J., in Merrifield v. Worcester, 110 Mass. 216, 219, 14 Am. Rep. 592. The natural flow of surface drainage from occupied land or from streets, though much increased by the adoption of newer systems, so as materially to injure the water of a brook into which it runs, will afford no cause of action to a lower riparian proprietor. Bainard v. Newton, 154 Mass. 255, 27 N.E. 995. Perhaps the decision in Pennsylvania Coal Co. v. Sanderson, 113 Pa. 126, 6 A. 453, 57 Am. Rep. 445, can be justified upon the ground that the injury there complained of resulted in reality from the water pumped from the plaintiff's mine having drained over the surface of the ground into the brook; upon which reason indeed it is partly rested in the opinion of the court. See Crossley v. Lightowler, L. R. 2 Ch. 478.
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. This was the doctrine laid down in Wood v. Ward, 3 Exch. 748. It has been maintained in the English courts. Mason v Hill, 5 B. & A. 1; Pennington v. Brinsop Hall Coal Co., L. R. 20 Eq. 769, 772. It is affirmed in our own decisions. In Merrifield v. Lombard, 13 Allen, 16, 90 Am. Dec. 172, it appeared that by the mode in which the defendant had conducted his business a large quantity of poisonous and corrosive substances was permitted to run into a stream, which defiled and corrupted the water to such an extent that the machinery in the plaintiff's mill, lower down on the same stream, was corroded and his use of the water for proper purposes was impaired and prevented; and the defendant was enjoined from continuing so to act, and the court said: 'We know of no rule or principle of law by which such a mode of appropriation of a running stream, in the absence of any proof of a paramount right or title, can be justified or excused as against a riparian owner of land on the same stream below.' In Dwight Printing Co. v. Boston, 122 Mass. 583, it was held that a riparian owner has no right, in the absence of express grant or prescription, to use the waters of a stream for dyeing or printing woolen or cotton cloths in such a way as to pollute the water and render it unfit for drinking purposes. The same doctrine has been incidentally affirmed in other decisions of this court. Washburn & Moen Manuf. Co. v. Worcester, 153 Mass. 494, 497, 27 N.E. 664; Walker Ice Co. v. American Steel & Wire Co., 185 Mass. 463, 471, 70 N.E. 937; New England Cotton Co. v. Laurel Lake Mills, 190 Mass. 48, 52, 76 N.E. 231. There is nothing inconsistent with it in Harris v. Mackintosh, 133 Mass. 228. It has been repeatedly and strongly declared in other states. 'Riparian proprietors, mill owners or others have no right to render the water of a stream unwholesome or offensive.' Richmond Manuf. Co. v. Atlantic De Laine Co., 10 R.I. 106, 14 Am. Rep. 658; Silver Spring Bleaching Co. v. Wanskuck Co. 13 R.I. 611 ...
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