
    No. 645
    KIRK v. CINCINNATI
    No. 59070.
    Cincinnati Superior Court
    Decided April 25, 1925
    1049. RIPARIAN RIGHTS—1. Are property which pass with the sale of land?
    2. Contributory pollution may be set up as defense in mitigation of damages.
    3. Where several cities contribute to pollution each is liable for the proportionate amount of damage caused by its own acts.
    4. Lower riparian owner not barred from right to maintain action when shown that he purchased his property through which stream runs, subsequent to dumping sewage by city.
   MARX, J.

Theodore and Margaret Kirk brought this action in the Cincinnati Superior Court for damages and injunction against the city of Cincinnati by reason of its dumping sewage into Muddy Creek, a stream which passed through Kirk’s farm situated below Cincinnati. Kirk claimed that no consent or rights were acquired from property owners along said stream authorizing its pollution.

The city in defense set up that Kirk had acquired his farm subsequent to the disposition of the sewage by the city, by dumping it into Muddy Creek; that it is not liable for its acts and that Kirk and others contributed to the pollution complained of. Kirk sued for $7000 and an injunction enjoining the city from continuing the nuisance. A verdict was returned in Kirk’s favor for $5000, and an injunction was granted to restrain the city from continuing to dump sewage in Muddy Creek to the damage of lower riparian owners; a further hearing to be held as to the injunction to determine the time within which and the conditions upon which the injunction is to be made effective. In overruling a motion for a new trial the Superior Court said:

1. Pollution contributed by a lower riparian owner to a stream previously polluted by acts of others above him is not a complete defense unless such pollution amounts to the cause •of condition complained of, but contributory pollution may be considered in mitigation.

2. Where several municipalities contribute to pollution each is liable for proportionate amount of damage caused by its own acts.

3. Riparian rights are property which pass with the land and the fact that a lower riparian owner, damaged by pollution of the stream, acquired his property after the creation of the nuisance complained of does not bar his right to maintain an action for damages, and for injunction to abate a continuance of such nuisance.  