The Weston Paper Co. v. Pope
| Decision Date | 22 June 1900 |
| Docket Number | 18,840 |
| Parties | The Weston Paper Company v. Pope et al |
| Court | Indiana Supreme Court |
Rehearing Denied Oct. 31, 1900.
From the Shelby Circuit Court.
Affirmed.
R. A Black, D. L. Wilson, W. A. Yarling, E. Marsh and W. W. Cook for appellant.
K. M. Hord and E. K. Adams, for appellees.
Appellees sued the appellant, a corporation, for damages and for an injunction forbidding the discharge into Brandywine creek of the putrescible, fermentable and otherwise deleterious waste from the appellant's strawboard works situate on the border of said creek near the city of Greenfield in Hancock county.
Appellees own a farm of 160 acres located on both sides of the creek at a point three miles below appellant's works, upon which for thirty years they have resided and engaged in the business of farming and stock-raising. The lands contiguous to the stream are used for grazing farm animals and so arranged in fields that live stock has ready access to the stream, where the large number kept therein always found plenty of water, which water privilege was of great value and enhanced the value of appellees' farm that prior to the use of the stream by appellant the stream contained fish suitable for food with which appellees supplied their table. In 1894 appellant completed its said mill to manufacture paper and other products from straw, and has continuously, since completion to this date, operated said mill in the manufacture of paper, and used therein a large amount of straw and water with lime and one and one-half gallons per day of muriatic acid, eighteen degrees in strength, and from said mill discharged into the stream per day about 500,000 gallons of water containing in suspension a large amount of matter which was inert and innocuous and which was deposited in the bottom and along the sides of the stream, and which water also carried in solution into the stream a large amount of fermentable and putrescible matter which would ferment and putrefy and give off noxious and offensive odors, injurious to health and comfort; that the inert matter so deposited along the banks and lodged against obstructions in the stream would become impregnated with the putrescible and fermentable matter and when exposed to the sun's heat would putrefy, and in addition to its offensive and deleterious odors would promote the growth of a water moss which fed upon it, and which, when becoming detached, floated down the stream, gathered and accumulated in large quantities upon obstructions in the stream, upon the banks, and in quiet pools in the stream, and there decayed, breeding large numbers of maggots and other vermin, and became itself a source of other noxious and offensive odors on the lands of the appellees and many others; that at times the fish in the stream were killed by said waste matter and floated and collected against obstructions and there putrefied and gave off other noxious and offensive odors; that at times the water of the stream would overflow appellees' said lands and deposit thereon and upon the grass the sediment carried in solution and suspension, whereby the grass was killed; that the waste water thus discharged by appellant into the stream was about equal in volume to that flowing in the stream at an ordinary stage of water in the months of July and August; that Greenfield is a city of 6,500 inhabitants, and the sewage from a general system of sewers in the city was turned into the stream in 1895, three miles above appellees' farm, since which time said noxious and offensive odors and conditions have continued with increased intensity to the commencement of this suit; that the pollution of said water by natural causes and by the said sewage was of itself sufficient to render said water unfit for domestic use or for animals to drink, but not to cause the vile odors and stench above stated; that said vile odors extended a distance of eighty rods from the stream; that in hot weather said odors were so strong, offensive, and unwholesome as to require the plaintiffs to keep the windows and doors of their dwellings closed to exclude them, greatly to the discomfort of themselves and families; that if the said pollution of the stream by appellant shall be permitted, it will lessen the value of appellees' farm $ 5 to $ 10 per acre; that by reason of the pollution of said water by the appellant, the rental value of appellees' farm has been decreased, in the period prior to the commencement of this suit, the sum of $ 250, and the appellees have been damaged thereby $ 250; that at the commencement of this suit appellant was discharging substantially all of said corruptible matter into said stream, and was then proposing and asserting its right to continue to do so; that appellant since 1898, by the use of purifying devices, has diminished the amount of deleterious matter discharged into the stream and has lessened the odors therefrom, but still continues and will still continue to discharge therein such quantities of said waste matter as will materially increase the pollution of said stream and cause the accumulation of putrescible matter and the emanation therefrom of strong, offensive, and noxious odors, to the injury of the plaintiffs; that said odors injuriously and materially affect the citizens and owners and occupants of lands along said stream, including the appellees, and materially lessen their comfort and happiness, and affect the appellees in a manner peculiar to themselves and different from the general public; that said conditions constitute a nuisance and the damages are immeasurable by a pecuniary standard; that appellant, in the construction of its plant in 1893, expended $ 90,000 in permanent structures, and, before beginning the construction and during its progress, appellees had knowledge that appellant proposed to expend a large sum of money in the erection and fitting of its mill and that it proposed to manufacture paper from straw, but appellees made no objection to such structures and contemplated business, and donated a quantity of straw to appellant to induce such location and business; but appellees were not informed and did not know or believe that the business would pollute the waters of the stream; that appellant operates its mill in a careful and skilful manner, and that use of said stream as an outlet for part of the waste water is a necessary use of said stream, and conducted in a skilful manner, and the consequent pollution of the stream is without malice or desire to injure the plaintiffs or other persons; but it is reasonably practicable for appellant to still further largely reduce the amount of deleterious matter carried into the stream; that to deprive appellant altogether from the use of said stream for drainage from its mill would compel appellant to abandon the business of paper making and thus render its plant of but little value; that the defendant owns no land bordering on said stream; that its factory and land is situate a short distance away and its said waste water is discharged into said stream...
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