Whalen v. Union Bag & Paper Co.

• Citation: 208 N.Y. 1,101 N.E. 805
• Parties: WHALEN v. UNION BAG & PAPER CO.
• Decision Date: 25 March 1913
• Court: New York Court of Appeals Court of Appeals

208 N.Y. 1

101 N.E. 805

WHALEN

v.UNION BAG & PAPER CO.

Court of Appeals of New York.

March 25, 1913.

Appeal from Supreme Court, Appellate Division, Third Department.

Action by Robert E. Whalen against the Union Bag & Paper Company. From a judgment of the Appellate Division (145 App. Div. 1,129 N. Y. Supp. 391) modifying and affirming a judgment for plaintiff, plaintiff appeals. Judgment of the Appellate Division, in so far as it denied an injunction, reversed, and judgment of the Special Term in that respect reinstated.

Robert E. Whalen, of Albany, in pro. per.

J. S. L'Amoreaux, of New York City, for respondent.

WERNER, J.

The plaintiff is a lower riparian owner upon Kayaderosseras creek, in Saratoga county, and the defendant owns and operates on this stream a pulp mill a few miles above plaintiff's land. This mill represents an investment of more than $1,000,000, and give employment to 400 or 500 operatives. It discharges into the waters of the creek large quantities of a liquid effluent containing sulphurous acid, lime, sulphur, and waste material consisting of pulp wood, sawdust, slivers, knots, gums, resins, and fiber. The pollution thus created, together with the discharge from other industries located along the stream and its principal tributary, has greatly diminished the purity of the water.

The plaintiff brought this action to restrain the defendant from continuing to pollute the stream. The trial court granted an injunction to take effect one year after the final affirmance of its decision upon appeal, and awarded damages at the rate of $312 a year. The Appellate, Division reversed the judgment of the Special Term upon the law and facts, unless the plaintiff should consent to a reduction of damages to the sum of $100 a year, in which event the judgment as modified should be affirmed, and eliminated that part of the trial court's decree granting an injunction. The plaintiff thereupon stipulated for a reduction of damages, and then appealed to this court from the modified judgment. The facts found by the trial court, which do not appear to have been disturbed by the Appellate Division, establish a clear case of wrongful pollution of the stream, and need not be set forth in detail.

The plaintiff is the owner of a farm of 255 acres, and the trial court has found that its use and value have been injuriously affected by the pollution of the stream caused by the defendant. The defendant conducts a business in which it has invested a large sum of money, and employs great numbers of the inhabitants of the locality. We have recently gone over the law applicable to cases of this character (Strobel v. Kerr Salt Co., 164 N. Y. 303, 58 N. E. 142, 51 L. R. A. 687, 79 Am. St. Rep. 643; Sammons v. City of Gloversville, 175 N. Y. 346, 67 N. E. 622), and it is unnecessary now to restate it. The majority of the learned court below reduced the damages suffered by the plaintiff to $100 a year, and reversed that portion of the decree of the trial court which awarded an injunction. The setting aside of the injunction was apparently induced by a consideration of the great loss likely to be inflicted on the defendant by the granting of the injunction as compared with the small injury done to the plaintiff's land by that portion of the pollution which was regarded as attributable to the defendant. Such a balancing of injuries cannot be justified by the circumstances of this case. It is not safe to attempt to lay down any hard and fast rule for the guidance of courts of equity in determining when an injunction shall issue. As Judge Story said: ‘It is impossible to foresee all the exigencies of society which may require their aid and assistance to protect rights or...