
    Richmond Manufacturing Company v. Atlantic De Laine Company.
    Every owner of land through which water flows is entitled to receive the water uncorrupted in quality from riparian proprietors above him, aud a court of equity will issue an injunction to prevent such corruption, upon satisfactory proof thereof.
    ' Bill in equity, brought by the complainants, a corporation situated upon a running stream, the Woonasquatucket River, engaged in the business of dyeing, bleaching, and printing cotton cloth, and the general business known as calico printing, against the respondents, a corporation situated higher upon the same stream, engaged in the business of manufacturing, dyeing, coloring, and producing goods made partly of wool, known as worsted goods.
    The bill alleged that the respondents emptied and discharged their refuse dye stuffs into the stream, and by so doing injured its water and rendered it unfit for use by the complainants for dyeing, bleaching, and calico printing at the place where it was taken from the river for use by them, and prayed for a perpetual injunction enjoining the respondents from so emptying and discharging their refuse dye stuffs.
    The answer admitted that the respondents emptied their refuse dye stuffs into the river when necessary, and as required in the prosecution of their business, but denied that by so doing they perceptibly or appreciably injured its water, or rendered it unfit for the purposes for which it was used by the complainants, and also claimed that as riparian proprietors they had a lawful right so to do.
    It appeared in evidence that the complainants took their water from the river through a conduit, the entrance to which was situated 2,875 feet below the drain of the respondents’ works, and that the distance between the entrance to said conduit and the works of the complainants was 2,070 feet, making the distance between the place on the Wooxxasqxxatucket River, where the respoixdents empty theix’ x-efuse drugs and dyes, and tbe place where the water of said river is taken into the complainaxits’ works for xxse, 4,945 feet, or nearly one mile.
    Much evidexxce was takexx by both parties, which is stated as fully as is necessary to axx understanding of the poixxts of law decided, in the opinion of the court.
    
      Caleb Cushing, Hart ¿> JParsons, for the complainants,
    contended, I. That under the rxxles which govern coxxrts of eqxxity ixx the exercise of their general juxisdiction in cases of like character with this, the complainants, if the allegations of their bill were sustaixxed by their proofs, wex'e entitled to the relief prayed for, namely, axx absolute and perpetual injunctioxx against the respondents, citing 2 Story’s Eq. Juris. §§ 925-927, xxotes (8th ed.), and cases cited ; Sutcliff v. Isaacs, 1 Pars. Sel. Eq. Cas. 496 et seq.; Wood v. Sutcliffe, 8 Eng. L. & E. 217 et seq.; Crossleg v. Lightowler, Law Rep. 3 Eq. 291; S. C. Law Rep. 2 Ch. 478; Axxgell on Watercourses (6th ed.), 228 et seq., notes, axxd cases cited; Goldsmid v. The Tunbridge Wells Improvement Commissioners, Law Rep. 1 Ch. 354; Holsman v. Boiling Spring Bleaching Co. 14 New Jersey Equity, 338 et seq., and cases cited.
    II. That the evidexxce ixxtroduced by the respondents to show that there were other xxxanxxfacturing establishxxxexxts oxx the Woonasquatucket River, the refuse matter from which was poured ixxto it, thereby aiding in the pollution of the stream, could xx ot avail the respondexxts, because a wrong-doer cannot defend his own share ixx a wrong by showing that axxother is equally gxxilty with hiixx, citing Wood v. Sutcliffe, Crossleg v. Lightowler, axxd Axxgell on Watercoxxrses, 240, supra; also St. Helen’s Smelting Co. v. Tipping, 11. H. L. Cas. 642.
    III. That the averxxxexxt in the answer, that the respondents were riparian proprietors, was no defence to the allegations of the bill, and could not avail the respondexxts as a justification of their pollution of the river, or'as the basis of axxy right to do the acts admittedly done by them and complained of ixx the bill, citing Bordwell v. Ames, 23 Pick. 333 ; Snow v. Parsons, 28 Vt. 459, axxd Axxgell oxx Watercourses (6th ed.), 233-4, and cases cited.
    
      B. W. Greene, Payne Tobeg, for the respondents,
    contended, I. That the complainaxits were not perceptibly or appreciably injured by tbe introduction by tbe respondents of tbeir refuse .drugs and dye stuffs into the Woonasquatucket River, in tbe manner in wbicb it was done by tbem.
    II. That tbe respondents bad a lawful right to empty tbeir refuse drugs and dye stuffs into tbe Woonasquatucket River in tbe manner in wbicb it was done by tbem, citing Snow v. Parsons, 28 Vt. 459 ; Jacobs v. Allard, 42 Vt. 303; and Angelí on Watercourses, § 140 d, and cases cited, pp. 240 243, 6th ed., and,
    III. That even if tbe last foregoing points be ruled against tbe respondents, still where tbe injury as in this case, if any existed, was slight, and could be remedied or be compensated in damages, an injunction ought not to issue, more especially when tbe issuing of tbe same would work great injury to tbe respondents.
    They represented that the manufacturing establishment of tbe respondents was a very large one, tbe amount of investments in mills, machinery, bouses, &c., at tbeir works being about fifteen hundred thousand dollars, tbe number of persons employed about eight hundred, and tbe amount of tbe annual product about fifteen hundred thousand dollars; and that tbe effect of granting an injunction such as now sought by tbe complainants would be to stop tbe works of tbe respondents, as they bad no other means of getting rid of tbeir refuse dyes than by discharging tbem into tbe Woonasquatucket River, and contended that under these circumstances it was tbe settled law that an injunction should not issue, but tbe complainants be left to pursue tbeir remedy at law if they bad suffered any injury, citing Wood v. Sutcliffe, 2 Sim. N. S. 168; SparhawJcY. Union Passenger Railway Co. 54 Pa. State, 401; Running v. Aurora, 40 111. 481; Thebout v. Canova, 11 Fla. 143, 172, and cases cited; Zabrishie v. Jersey City $ Bergen R. R. Co. 2 Beas. 814; Attorney Greneral v. Gtee, Law Rep. 10 Eq. 131; Story’s Eq. Juris. § 925; Adams Eq. s. p. 211, and notes “ p ” and “q,” and cases cited; Angelí on Watercourses, chap. iv. § 140 d, and cases cited.
   Potter, J.

In this case tbe complainants allege that they are riparian proprietors on tbe banks of tbe Woonasquatucket River, and that they and tbeir predecessors in title have owned and maintained certain mills upon tbe banks of said river since 1838, used by tbem for bleaching, dyeing, and calico printing, and that until polluted by tbe respondents tbe waters of said river were pure and well adapted for said purposes; that (A. D. 1851) the respondent corporation erected a mill upon the banks of said river, above the complainants’ mills; that (1868) they enlarged their establishment, and have, since that went into operation (1865), emptied into said river the refuse of said mill — dye stuffs, oily and fatty substances — by which the waters of the river have been polluted and rendered unfit for use by the complainants in their said business; their clearness and purity destroyed; their use for ordinary purposes of washing and drinking and for cattle, prevented ; and the water in low stages rendered offensive to smell and injurious to health, by which the complainants have been greatly injured, and obliged, at some times, wholly to abandon some branches of their business. And they pray for a perpetual injunction.

In the trial of the cause a great deal of evidence has been taken relative to the alleged pollution and the causes of it, and its effects upon the business of the complainants, and specimens of the water taken at various times and places have been analyzed by chemists and exhibited to the court.

The respondents admitted that the water of the river, “ when free from foreign substances, was as pure as the water of rivers in this region usually is,” and that they had, when necessary, but not continually, emptied their refuse dye stuffs into the river; but denied that they had appreciably injured the water or rendered it unfit for the complainants’ use, or that the complainants had been materially injured by it; and also claimed that as riparian proprietors they had a lawful right^fco use it as they had' done.

The respondents also claimed and introduced evidence to show, that the refuse from certain stables, drains, privies, and tanneries have been emptied into the river between the mills of the complainants and respondents, and that the amount of refuse discharged into the river by the respondents was very small compared with the volume of the stream; and they claim that the evidence of the experts shows that the constant tendency of such a stream in running the distance of a mile between the mills, would be to purify itself by sediment and by chemical change in the character of the matter discharged into it.- And a great deal of evidence has been put in as to the comparative fairness of the various experiments.

It is also claimed by tbe respondents that tbe imperfections in the goods manufactured by the complainants may have arisen from other causes ; that their goods have- sold well, and that they might have protected themselves from all injury by a properly constructed filter.

The complainants urge that, by the pollution of the water, they have been compelled to abandon the manufacture of the sort of goods they formerly made, and to make goods showing very little white; that if their goods have sold well, it has cost more to make them; that the alleged impurities are not found above the respondents’ mills, and that although all the other alleged sources of impurity, except the stables, were there before 1865, there was no complaint before the respondents erected their large mill (no woollen goods having been made at the respondents’ mill from 1856 to 1864, and Taft & Weeden’s mill having never since 1866 emptied into the stream any dye-stuffs, or the contents of wool washing), and that while, in the spring, the proportion of impurity is of course less, compared with the whole volume of water, the water in its lowest stages is very impure and very offensive. t

The respondents do not in fact deny that they have thrown noxious substances into the stream, but they have taken considerable evidence to endeavor to show that others as well as themselves have polluted the water, and that the complainants have not been materially damaged thereby.

We do not propose to recapitulate the evidence. One general remark applies to it, that while the complainants’ evidence positively shows the pollution of the water, and that the respondents have been the cause of at least a considerable proportion of this pollution, the evidence on the part of the respondents is of a negative character, going to show that the water is at times purer than at others.

If the respondents have polluted the water, it is no excuse for them that-others also have polluted it.

And it is no defence to say that the complainants could have filtered the water at no great expense. The complainants are under no obligation to do this, and the respondents have no right to put them to the expense of doing it.

The principles of law which govern the case are well settled. Riparian proprietors, mill owners or others, have no right to render the water of a stream unwholesome or offensive. Angelí, Watercourses, 6th ed. p. 283, § 136.

He has a right to the reasonable use of the water for his own purposes, but he must not do anything unnecessarily to abridge the use of it to those below him.

The general doctrine is well stated in the opinion of Chancellor Greene, of New Jersey, in the case of Holsman v. Boiling Spring Bleaching Co. 14 New Jersey Equity, 335, 338, 342.

That was a suit to restrain defendants from polluting the water by emptying into it the refuse of the bleaching works. In that case the defendants claimed that they had exercised the right for twenty years, and also alleged that they had erected a filter for the purpose of eliminating from the water all injurious substances.

The chancellor examines the points made at length. “ Every owner of land through which a stream of water flows is entitled to the use and enjoyment of the water, and to have, the same flow in its accustomed and natural course, without obstruction, diversion, or corruption. The right extends to the quality as well as to the quantity of the water.” And he quotes Chancellor Kent: “ The right of the riparian proprietor to the use and enjoyment of a stream of water in its natural state, is as sacred as the right to the soil itself.”

In that case, the complainants had served a notice on the defendants at the time of building their (defendants’) mill, cautioning them against injuring the water; and the charter of the. defendant corporation contained a provision that they should not injure the water for domestic purposes. Brit the court did not consider these facts as affecting the legal rights of the parties.

There is no doubt of the power of the court to issue the injunction prayed for, and we think a proper case is made out for doing it. Decree for perpetual injunction.  