Weston Paper Co. v. Comstock

• Decision Date: 02 October 1900
• Citation: 58 N.E. 79
• Parties: WESTON PAPER CO. v. COMSTOCK.
• Court: Indiana Supreme Court

58 N.E. 79

WESTON PAPER CO.

v.COMSTOCK.

Supreme Court of Indiana.

Oct. 2, 1900.

Appeal from circuit court, Shelby county; Frank E. Gavin, Special Judge.

Action by John W. Comstock against the Weston Paper Company. From a judgment in favor of plaintiff, and from an order denying a new trial, defendant appeals. Affirmed.

R. A. Black, Wilson & Yarling, and Marsh & Cook, for appellant. Hord & Adams, for appellee.

HADLEY, J.

This is an action to recover damages for the pollution of the waters of a nonnavigable stream and for injunction. The questions reserved and argued by appellant relate to the action of the court in sustaining appellee's demurrer to the second paragraph of the answer, to the conclusions of law upon the facts specially found, and to the overruling of appellant's motion for a new trial.

The complaint, in substance, sets forth that the plaintiff, Comstock, was the owner of, and resided with his family upon, 290 acres of land in Hancock county; that the land was subdivided into fields and pasture, and was in a high state of cultivation, and used for general farming, dairy farming, and stock raising; that a natural stream of water, known as “Brandywine,” enters said farm from the north, and flows through the same in a southerly direction; that said stream is fed by springs along its course, and is more than 20 miles long, more than 10 miles thereof traversing Hancock county; that in an ordinary stage said stream is from 6 to 8 feet wide and from 2 to 4 inches in depth, and its banks, for its entire length, occupied with cultivated farms and residences of the owners; that, before the grievances complained of, its water was reasonably pure and wholesome, and suitable for drinking water for animals: that the fields and pastures on the plaintiff's farm were so arranged that the animals pasturing thereon could and did obtain their water from the stream, and that for many years the plaintiff had kept upon said farm a large number of farm animals, including from 35 to 40 dairy cows, and horses, hogs, and sheep, and relied upon said stream to furnish them with water, which it never failed to do, and which was a great convenience and of great value to the plaintiff, and greatly enhanced the value of his farm; that the stream was well stocked with fish, which supplied the plaintiff's table; that about three years before the commencement of this action the defendant (appellant) erected at Greenfield, near said stream, and about 3 miles above plaintiff's said farm, a large mill for the manufacture of paper, and has continued the manufacture of paper from said time to the commencement of this suit, and is continuing and will continue the same, and is using in the manufacture of its said product large quantities of straw, lime, water, and other substances, and discharges through an artificial channel into said stream large quantities of polluted water, waste, and refuse matter, thereby corrupting the water of said stream and causing it to become foul and poisonous along its entire length below, thereby destroying the fish therein, and rendering said water offensive to the senses and wholly unfit for drinking water for animals; and, in times of high water in said stream, said poisonous and noxious substances have been and are carried by said high water from their place of deposit, in the bottom and along the borders of said stream, out and upon the fields and pastures of the plaintiff contiguous to said stream, thereby destroying the pastures and growing crops of the plaintiff, to his special damage $1,000; that large quantities of said noxious, waste, and refuse matter so discharged into said stream are deposited at the bottom and along the margins and bars of said stream, and do there ferment and putrefy, and send forth to great distances offensive, noxious, and unhealthy odors, thereby greatly interfering with the health, comfort, and enjoyment of the plaintiff and plaintiff's family residing on said farm, and with the comfort, enjoyment, and health of all other citizens residing along the line of said stream; that during all of said three years this plaintiff and other dwellers along said stream, to their great injury and discomfort, have been continuously compelled to close the doors and windows of their dwellings, and keep them closed throughout the nighttime, for the purpose of excluding the noisome and offensive odors arising from the putrefying matter so deposited along said stream, and the plaintiff's dairy cows, in passing through said stream, as they were compelled to do in pasturing on said farm, acquired said offensive odors, to the great annoyance and discomfort of the plaintiff and others who were required to milk and care for them; that the waters of said stream were thus rendered wholly unfit for any domestic use, and rendered of no value to the plaintiff and other citizens, and unfit for ice, which the plaintiff had for many years prior taken therefrom, and used large quantities in his dairy business; that the rental value of the plaintiff's farm is depreciated thereby $500 per annum; that the defendant has thus erected and is maintaining a nuisance to the public, including the plaintiff, and has specially, as aforesaid, damaged the plaintiff $3,000; that the defendant is threatening to continue said acts, and will so continue them if not restrained, and the plaintiff will thereby suffer irreparable damages, etc. Prayer for damages and an injunction. In the second paragraph of answer it is alleged: That the plaintiff ought not to maintain his action, for that...