
    Prestonia Mann, Respondent, v. Harvey Willey, Appellant.
    
      Hiparían owner—injunction to prevent the discha/i'ge of sewage into a stream — granted whe/re the actual use of the water is not impaired — direction of the hoard of health to so discharge it.
    
    A riparian owner of land upon a stream, who uses the water thereof only for the purpose of bathing and for turning a turbine wheel, is entitled to an injunction restraining an upper riparian owner from discharging sewage in the stream, which pollutes it and renders it unfit for domestic purposes, even though such use as is made of the stream by the lower owner is not impaired by the presence of the sewage.
    An order of the board of health of the town in which the upper riparian owner’s premises are situated directing him to discharge his sewage into the stream does not justify such action on his part, as the board of health has no power to make such an order.
    Appeal by the defendant, Harvey Willey, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Essex on the 12tli day of January, 1900, upon the decision of the court rendered after a trial at the Essex Trial Term before the court without a jury.
    
      Richard L. Hand, for the appellant.
    
      R. Corbin, for the respondent.
   Per Curiam :

The plaintiff is a riparian owner upon the banks of a creek known as Gulf brook. She complains that the defendant, who keeps a summer hotel located some fifty-four rods further up the stream, has polluted the water of such stream by discharging all the sewage from his hotel into it. She brings this action for a perpetual injunction against the defendant so discharging into the stream, and for damages for the injury already caused her.

The defendant resists her cláim.upon two grounds :

First. That, although the sewage is so discharged into the stream, it does not in fact pollute it.
Secondly. That he has been compelled to discharge into such stream by order of the board of health of the town in which his hotel is situated.

The trial judge found, as a fact, that the discharge of such sewage-into the stream rendered it impure and unwholesome, and that plaintiff’s damage thereby is substantial, and ordered judgment for a perpetual injunction against the same. From the judgment entered thereon this appeal is taken.

The plaintiff has never, as yet, used the water from this stream for drinking, cooking or other domestic purposes. The only use to which she seems to have ever put it is for bathing and driving a-turbine wheel. And the defendant contends that for such purposes the water is in no way injured by the discharge of his sewage into the créek.- Although there is some - conflict of evidence on that question, we are inclined to think the weight of evidence is to the effect that, when the water reaches the plaintiff’s premises, it does not appear either to the smell or the sight to -be at all affected by the sewage, and if the right to the injunction depended entirely upon that question, we would hardly be inclined to sustain it. But. that the discharge of such sewage into the stream does pollute and render it unfit for domestic purposes cannot be doubted, and is, we think, established by the evidence, and even though the plaintiff has not as yet put the water to such a use, she had the right. to the stream in its natural purity. (Townsend v. Bell, 62 Hun, 306 ; S. C., 42 App. Div. 409 ; Chapman v. City of Rochester, 110 N. Y. 273.) And that right was not conditioned upon the beneficial user of it, (N. Y. Rubber Co. v. Rothery, 132 N. Y. 293, 296.) And she was entitled to equitable relief against the defendant for interfering with it, though the damages were merely nominal. (Amsterdam Knitting Co. v. Dean, 13 App. Div. 42.)

Upon these authorities we conclude that the defendant’s objection first above stated cannot be Sustained. ■

As to the second, that the defendant could justify his act under the order of the board of health, we can find no statute, nor rule of law, which confers upon such board the right to authorize one citizen to create and maintain a nuisance to the in jury of another. Such board may have had authority to prevent the defendant from maintaining cesspools, but they could not have compelled him to sewer into the stream; and the argument that if the defendant must obey this injunction he will be compelled to disobey the order of the board, and thus be liable to punishment for so doing, is not sustained by the facts or by the law of this case. No such power as defendant claims for such board can be found in the statutes creating it, nor should any be implied from the powers thereby conferred. (Morton v. Mayor, 140 N. Y. 207, 212. See; also, Moody v. Village of Saratoga Springs, 17 App. Div. 207, 209, 210.)

We conclude that the trial judge was correct in holding that a justification could not be sustained by reason of any order that the board of health could have made in the premises, and that the judgment which he ordered should be sustained.

All concurred, except Kellogg, J., not sitting.

Judgment affirmed, with costs.  