
    The City of Cleveland v. The Standard Bag and Paper Company.
    
      Stream, of water — In city corporation — Used for open sewer for twenty-one years — Effect of rights, of riparian owners— Municipal corporations.
    
    When a part of a stream of water, being wholly within a municipal corporation so that none but its residents are thereby affected, is generally devoted to the purposes of an open sewer for more than twenty-one years, as against a riparian owner who contributes to and acquiesces in such use, it becomes charged with a servitude authorizing its like use by other riparian owners. (Mansfield v. Balliett, 65 Ohio St., 451, distinguished.)
    
    (No. 8900
    Decided April 11, 1905.)
    Error to the Circuit Court of Cuyahoga county.
    On the sixth of July, 1900, The Standard Bag and Paper Company brought suit against the city of Cleveland in the court of common pleas to enjoin the city from the further pollution of a stream of water known as Kingsbury run and to recover $30,000, the damages alleged to have been sustained by it in consequence of previous pollution occasioned by discharging sewers into the stream. At the time of the bringing of the suit the company was the owner of premises lying on the westerly side of For.est street and on both sides of Kingsbury run, the premises being occupied with buildings devoted to the manufacture of paper, the water of the stream in its natural state being alleged to have been suitable for supplying the company’s engines and for the processes of manufacturing paper from raw material, and was so used by it. The company alleged that by sewers constructed in 1896, -98 and -99 the city discharged into said stream sewage from a large area and in such quantities that it could not be absorbed or carried away by the stream thus causing serious injury to its plant and in consequence of offensive odors emitted rendering uninhabitable a dwelling house upon the company’s premises.
    In its answer the city admitted the construction and operation of the sewers as alleged in the petition but denied that they discharged into the stream, sewage from beyond the area of natural drainage. It also alleged that beginning in the year 1873 it had constructed several other sewers discharging into said run and that it had openly and notoriously used said run for sewer purposes from that time until the filing of its answer, all of which was done with the knowledge and acquiescence of the plaintiff and its predecessors in title and occupation; that all of said sewers were constructed at great expense to the city and that in reliance upon such acquiescence the city had expended large sums of money in the establishment and maintenance of said sewers and sewers tributary thereto.
    The city- also in its answer made the following allegation as its fifth defense:
    “Further answering and for its fifth defense to plaintiff’s petition defendant says that ever since 1860 the plaintiff and its predecessors have continuously used and are now using said Kingsbury run, the water course mentioned in plaintiff’s petition, by discharging therein from its plant and its premises a great volume of sewage commingled with noxious waste substances and chemical ingredients; that said discharge and drainage so made by the plaintiff is and always has been highly polluting in its character, and that by its said conduct and that of its predecessors said water course has been continuously polluted during the time herein set forth; that this plaintiff has during all the time it has owned and possessed said plant continued its said contamination of said Kingsbury run, and that the plaintiff is invoking the interposition of this court for the abatement of acts similar in character to those complained of.”
    The reply of the company after denying the other allegations of the answer admitted the allegations of said fifth defense as follows:
    “For reply to the fifth defense the plaintiff admits that ever since 1860 it and its predecessors in title have used and are now using said Kingsbury run, the water course mentioned in plaintiff’s petition, by discharging therein from its plant and its premises the waste fluids from its manufacture of paper, but says that said discharge has been into said water at points below on the course of said stream, any of the sewers maintained by tbe plaintiff, and denies each, and every allegation in said defense contained.”
    Upon tbe trial it appeared that after the commencement of the action, bnt nearly three months before the trial, the company had conveyed the premises and all its interest therein to the Cleveland-Akron Bag Company, which was then in possession of the premises, and thereupon that fact was set up in a supplemental answer which stood admitted. In the court of common pleas an injunction was refused “because of the fact that the plaintiff neither owned nor was in possession of the property in the petition described at the date of the trial of this action, ’ ’ but the court nevertheless rendered a judgment against the city for incidental damages in the sum of $3,500. The case was then appealed to the circuit court. On the trial in that court much testimony was introduced to show the condition of the stream and the use of its waters for a period of about forty years, and upon a consideration of all the evidence the circuit court found that the plaintiff had sustained damages by reason of the acts of the city in the sum of $100 per month. It also found that the company was not entitled to an injunction, “it appearing to the court that the nuisance complained of is one of long standing and that considerations of public policy intervene.” But the court nevertheless rendered judgment against the city for incidental damages in the sum of $6,600. There is no conflict in the evidence upon any point that is material to the controversy. The stream affords surface drainage for approximately two thousand acres of the city of Cleveland, and the sanitary sewers which discharge into it are restricted to that area. Kings-bury run discharges into the Cuyahoga river a short distance below the company’s premises, and that river in turn discharges into Lake Erie, all within the limits of the city. From the admitted allegations of the fifth defense and the undisputed evidence it appears that the company for forty years and the city for a period of more than twenty-five years had been using this stream for the purposes of an open sewer and in no 'sense using it for the purposes for which flowing waters are primarily used, the company through all of that time discharging into it the waste substances of a noxious character containing chemical ingredients from its entire plant and the discharge from its water closets, the washings amounting to a million gallons daily. One witness, who had been superintendent of the company’s plant from 1871 to 1891 continuously, testified that in that time no effort was made to use the waters of the run for the uses of the plant because it was regarded as unfit, and his testimony in that regard is corroborated in so far as it is affected by other testimony. During the nine years following 1891 another superintendent made occasional but unavailing efforts to render the water fit for the uses of the mill by the installation of filtration plants, and upon the failure of all these efforts this suit was brought. The other evidence in the case shows that a condition of extreme pollution was present in the stream prior to 1871. To that condition the inhabitants of the valley of the run contributed generally. Among the contributors are more than twenty large establishments discharging into the stream above the company’s plant the contents of water closets and the refuse of their business. They include a slaughter house, numerous oil refineries, a paint factory, ice works, candle and axle grease works, lubricating oil works and soap works. In the court of common pleas the facts were substantially found and though that finding is not under review here, it is convenient to resort to it for a partial statement of the facts which were developed upon the later trial in the circuit court. From that finding it appears that from Flick’s slaughter house located on Forest street just above the plant of plaintiff, there was a discharge, more or less continuous, of filthy water or liquid. That there were several works located on the run some distance above plaintiff’s plant at that time and there was a discharge of oil or oily substance from these plants into said run. That some manufacturing plants were located on said run during the period of time that plaintiff owned the property described in said petition and prior to the commencement of this action. And since the commencement of this action many other manufacturing plants have been located on said run above plaintiff’s plant. That said manufacturing plants, so located on said run have privy vaults for the accommodation of the employes of said plants, the refuse from which discharged into the run. That some of these plants were large manufacturing plants employing several hundred men each. That these plants, some of them besides discharging sanitary sewage into said stream also discharged into it streams of polluted water. That the nearest of said plants to plaintiff was about one-half mile above the same, and others were located at various points along the run for a distance of one mile or one and one-half miles above that point. That numerous private houses,, located along the banks of said run, discharged their wash water into the same, and had privies located on the banks thereof. Taking the view of the evidence most favorable to the company the fact appears that the stream from a point approximately a mile and a half above the company’s plant to its mouth was for more than twenty-one years before the beginning of the suit given over wholly to the purposes of a sewer. To the polluted condition of the stream the city admits that it contributed largely by means of sewers which were constructed from time to time as required by the growth of the city and this was done at great expense and without protest from the company. Upon the trial evidence was offered by the company to show injuries sustained after it had conveyed the premises to the Akron company and to this an objection was interposed on behalf of the city. There had been no assignment of the Akron company’s cause to the plaintiff company nor was the Akron company a party of record to the suit. But this objection was overruled, the evidence admitted and taken into account by the court in its assignment of damages because of a fact which appears only by a certificate in the bill of exceptions that the Akron company appeared “and in open court adopted and ratified the prosecution of this cause by the record plaintiff and by its counsel it' participated in the trial of the case.”
    The city interposed a motion for a new trial upon numerous grounds including the weight and effect of the evidence and the motion was overruled and judgment rendered by the circuit court in accordanee with its finding. For the reversal of that judgment this petition in error is prosecuted.
    
      Mr. Newton D. Baker, city solicitor; Mr. Charles J. Estep and Mr. Barry F. Payer, attorneys for plaintiff in error.
    Effect of transfer of title after commencement of action. Defendant in error should have been remitted to action at law and trial by jury.
    
      After the commencement of this action in the court of common pleas and prior to the trial of this cause therein, the Standard Bag and Paper Company, defendant in error, conveyed its title absolutely in fee and delivered possession of its plant and entire premises to another (the Cleveland-Akron Bag Company). The petition was filed in Cuyahoga common pleas court by the defendant in error, July 6,1900; on February 1,1903, about three months prior to the trial in said court, it parted with its title and possession absolutely without any reservation to it of any rights of action as respects its said plant and premises.
    When the record discloses that the city did not stand on its denial of plaintiff’s title, of course it is mutually understood to mean only that the city waived documentary proof of the fact that at the commencement of the action, defendant in error had title to the premises.
    The city of Cleveland by its counsel contends, first, that the circuit court manifestly erred in receiving evidence to control its decree and judgment as if the defendant in error and its grantee were both plaintiffs to the action; that the summary super-addition of the grantee as a party to the action without any order or leave of court to prosecute the equitable aspect of the case while the defendant in error was contemporaneously submitting its claim for past damages to a chancellor without the intervention of a jury, was a proceeding wholly unauthorized by our statute, unsupported by authority and legally ineffectual.
    If the grantee (the Cleveland-Akron Bag Company) should today commence an action against the city of Cleveland to recover for damages alleged to have been sustained during its period of ownership— a period that was considered by the circuit court in estimating the damages in this case — could the city of Cleveland interpose a defense of res judicataf Could not the grantee say: “Where is the record, or order, or process or pleading in any court to show that this grantee was ever a party to that cause— wherein does any judgment disclose that the claim of this grantee was ever considered — what record forsooth is there to show that we have ever had an interest in or controlled the proceeds of a judgment or decree predicated upon any injury to our plant or premises?” Schaeffer et al. v. Marienthal, Lehman & Co., 17 Ohio St., 183.
    It must, therefore, follow that it is proper for this court to reverse a judgment rendered and recorded in favor of the defendant in error, whereas the evidence and admissions in the record conclusively show that if the defendant in error was entitled to a judgment at all, the grantee, the Cleveland-Akron Bag Company, was entitled to have a portion thereof.
    If on the other hand we assume that this decree and judgment would bind the said grantee, by what 
      
      authority^ could the circuit court permit the said grantee to participate in the trial and have its cause of action commingled with the cause of the defendant in error. Our statute (section 5012) certainly contemplates neither joinder of parties nor causes of action in such case. Where a person is substituted as plaintiff the issues are still between the original parties — he only takes the place of the original party who ceases to be a party to the suit. Both cannot remain to maintain and prosecute their separate claims; one or the other must go out of the case. Keys v. Grannis, 3 Nev., 548; Virgin v. Brubaker, 4 Nev., 31. The defendant in error could claim no interest in the equitable relief invoked to protect a plant and premises which it no longer owned; the grantee could claim no interest in the claim of the defendant in error for damages that had accrued in the past before it owned or possessed the plant. The intent of our statutes is to enable the real party in interest, either by substitution or in the name of the original party, to prosecute the action without abatement thereof, but there is no authority, either in this state or in any other state for the superaddition of a new party so as either to change or add a cause of action. 1 Bates’ Pleadings, 43, 62; secs. 4993, 5012 and 5013, Rev. Stat.; 1 Stover’s New York Code, 844, sec. 756; Rodgers v. Pitt, 96 Fed. Rep., 673; Mooney v. Railway Co. et al., 13 App. Div., 380.
    The city further contends that the defendant in error by its own voluntary act of conveyance and abandonment of plant and premises constituting the whole rem of its action divested the court of equity, wherein its action was being prosecuted, of the right to intervene in its behalf; that the defendant in error thereby abandoned the sole ground upon which its right to equitable relief rested; that an action at law for past damages alleged to have been sustained was then the full length, breadth and depth of the claim that remained in the defendant in error. In view of the pleadings and the admitted facts the court was without jurisdiction to entertain the claim of the defendant in error and the defendant in error must be and ought to have been remitted to its action at law and a trial by jury. Holzmann v. Monell, 19 App. Div., 242; McNulty v. Electric Co., 172 N. Y., 410; Rutty v. Fruit Jar Co., 36 N. Y. St. Rep., 121.
    If for the purpose of this contention we assume that the circuit court was right in awarding damages while denying the equitable relief sought; in granting incidental relief while denying primary relief, one or both of two things must be established by the proof to sustain such judgment, even if a jury trial had been granted:
    (a) That the city made unreasonable use of this run, which for forty years has not been regarded by any one as adapted even for secondary uses.
    (b) That the area drained into said run by the city sewers would not have been so drained in the course of nature.
    Water courses are the means that nature has provided for the drainage of the territory through which they pass. We may say that the rules of law in regard to water courses, and the rights, duties and obligations of riparian proprietors, depend very much upon circumstances. The measure of right in regard to streams and brooks in the country, for instance in farming communities, and where the owners are engaged in agricultural pursuits, or the raising of stock, can hardly be taken as the measure of right, duty and obligation in urban communities. Wood on Nuisances, sec. 694; Angelí on Water Courses, sec. 140d (7 ed.), 239; Jacobs v. Allard, 42 Vt., 303.
    If, as Angell says, these same rules govern as in the case of abstraction, detention or diversion of a stream, we invoke the doctrine clearly and ably laid down in the case of the City of Canton v. Shock et al., 66 Ohio St., 20.
    All the circumstances of the use of this run are presented in the record. Not only the use made of the run by every riparian proprietor as shown in the record verifies the contention here made, but the testimony of the only two experts, Mr. Hoffman and Mr. Parmley, called to testify upon the subject, is that the use of Kingsbury run for the discharge of city sewage therein is not only a reasonable but a necessary use. Valparaiso v. Hagen, 48 L. R. A., 710; Johnson v. Avondale (Vil.), 1 Circ. Dec., 124; 1 C. C. R., 231.
    The evidence conclusively shows that the city’s sewers drain only the natural drainage area into Kingsbury run. The evidence also conclusively shows that even if the sewers had not been constructed by the city and projected into Kingsbury run, it would have been as much polluted and perhaps more polluted in the course of nature by reason of the fact that the refuse and sewage finding its way there would not have been commingled with so much water, which tends to purify it, as is the case in the city sewers. No claim is made in this case that the city surcharged the stream. If recovery can be had at all, defendant in error can recover only for the quantum of pollution caused by the city, and not for that caused by others. Chipman v. Palmer, 77 N. Y., 51; Miller v. Ditch Co., 87 Cal., 430; Little Schuylkill Nav. Co. v. Richards, 57 Pa. St., 142; Sellick v. Hall, 47 Conn., 260; Gould on Waters, sec. 222; Pomeroy on Remedies, secs. 370-308; 1 Dayton, 30.
    Both these sewers were constructed above plaintiff’s plant and not far away, in the view and with the knowledge of the defendant in error. That knowledge is shown in the testimony of Mr. Jaite. If those sewers have had a deleterious effect upon the stream, he was bound to anticipate what any prudent man ought reasonably to have anticipated in that regard. Yet he remained silent during the months and the years of construction. Here was a system of sewerage affording a natural and the only practical outlet for the sewage of a large area in the city of Cleveland — a result of gradual development covering a period of thirty years, but no word of protest is heard from Mr. Jaite or any other representative of the defendant in error, although more than $200,000 are being expended under his very eye. No ivord of protest, no word of inquiry in the whole record is shown. Goodin et al. v. Canal Co., 18 Ohio St., 169; Chapman et al. v. Railroad Co. et al., 6 Ohio St., 120; Kellogg, Treas. v. Ely, 15 Ohio St., 64; Goodall v. Crofton, 33 Ohio St., 276; Pennsylvania Co. v. Platt et al., 47 Ohio St., 366; 21 N. Y. Eq., 283; Beach on Injunctions, sec. 1061; 2 Story’s Equity, see. 317; 2 Story’s Equity Jurisprudence, sec. 794.
    If the city of Cleveland has been acting wrongfully in using Kingsbury run, can the defendant in error be heard to make a complaint when it and its predecessors have been using the same stream in the same way for almost forty years? The unassailed analysis of Mr. Pate shows defendant in error’s effluent of a million gallons a day to be as highly polluting as the rawest sewage, yet may the defendant in error persist in that usage with regard to the same subject-matter and invoke equitable intervention against another riparian proprietor without an answer from the chancellor that if the use complained of be wrongful, the complainant is guilty in the same regard, and cannot be heard by reason of his own unclean hands? Cassady v. Cavenor, 37 Ia., 300; 1 Pomeroy’s Equity, see. 397; 27 Beavan, 425. •
    
      Messrs. Horr & Lowenthal, attorneys for defendant in error.
    The damage is undisputed. When the city’s Case avenue sewer began to empty one-sixth of the capacity of its forty-eight inch outlet into the stream practically at the front door of the mill, it discharged so much foul matter held in suspension that the mixture could no longer even be filtered into fitness for its previous use. No other conclusion is reasonable. The circuit court so decided.
    The right is enforceable in equity and is well established in this state. Rhodes v. Cleveland, 10 Ohio, 159; Mansfield v. Balliett, 65 Ohio St., 451; Chapman v. Rochester, 110 N. Y., 273; Pine v. City, 103 Fed. Rep., 337; Platt v. Waterbury, 72 Conn., 531; Smith v. Sedalia, 53 S. W. Rep., 907.
    The rule is that a municipal corporation causing its sewage to be emptied into a natural water course, thereby creating a nuisance or inflicting special and substantial damages on a riparian proprietor, is liable to an action for the damages so sustained. Fox v. Fostoria, 8 Circ. Dec., 39; 14 C. C. R., 481; Rouse v. Martin, 75 Ala., 510; Campbell v. Seaman, 63 N. Y., 568; Beach on Injunctions, sec. 1042; Pomeroy’s Equity Jurisprudence, secs. 139, 1351; Beach on Injunction, sec. 1042; Demopolis v. Webb, 87 Ala., 659; Carlisle v. Cooper, 21 N. J. Eq., 578; Chapman v. City of Rochester, 1 L. R. A., 296; Board v. Beyoe, 77 N. Y., 225.
    But the rights of the riparian proprietor to apply not only for damages, but for an injunction restraining the further continuance of the nuisance is also a recognized branch of equity jurisprudence, and inasmuch as the plaintiff below alleged facts sufficient to entitle it to an injunction and prayed therefor and for an assessment of its damages, the action became one to be entertained by a court of equity alone. 1 Pomeroy’s Equity Jurisprudence, secs. 235, 236; 237; Lynch v. Metropolitan Elevated, 15 L. R. A., 287; Gunsaullus v. Pettit, 46 Ohio St., 27; Chapman v. Rochester, 110 N. Y., 273; Lamming v. Galusha, 135 N. Y., 239; Platt v. City of Waterbury, 45 Atl. Rep., 154; Goodall v. Crofton, 33 Ohio St., 271; Stines v. Dorman, 25 Ohio St., 583; Crawford v. Rambo, 44 Ohio St., 287; Wood on Nuisances, sec. 778; Lembeck v. Nye, 47 Ohio St., 354; 1 Am. & Eng. Ency. Law (2 ed.), 69; Pollock v. Ship Building Co., 56 Ohio St., 673; Cilly v. City of Cincinnati, 7 Dec. Re., 344; 2 W. L. B., 135.
    Injunction is always a matter of discretion with the court. Carlisle v. Cooper, 21 N. J. Eq., 584.
    Damages may be awarded even if the court considers that it will not grant an injunction. 1 Pomeroy’s Equity, 246; Beach, on Injunctions, sec. 1058; Pomeroy on Remedies and Remedial Rights, sec. 78.
    The court having jurisdiction for the purpose of avoiding a multiplicity of suits, an extension of the same equitable rule requires that it should ascertain all the damages sustained by the plaintiff down to the date of the decree, which the court in this case did, taking effect as of the first day of the term. 21 Am. & Eng. Ency Law (2 ed.), 732; Webb’s Pollock on Torts, 519; Pomeroy’s Equity Jurisprudence, secs. 237, 242; Beir v. Cooke, 37 Hun, 38; Comminge v. Stevenson, 76 Tex., 642; Carmichael v. Texarkana, 94 Fed. Rep., 561, 575; Lynch v. Elevated Railroad, 15 L. R. A., 287.
    The city claims that it only made “reasonable” use of the stream. Of course the city has a right to make a reasonable use of the stream, but no use of its waters, is reasonable which causes damage to any riparian proprietor'. Mansfield v. Balliett, 65 Ohio St., 451.
    The governmental authority to build sewers, whether express or implied, does not license the city to create a nuisance. Grey v. City of Paterson, 42 Atl. Rep., 749; Platt v. City of Waterbury, 45 Atl. Rep., 154; Crossville v. Stuart, 77 Ill. App., 513; Peterson v. City, 119 Cal., 387; 24 Am. & Eng. Ency. Law, 946; Railroad Co. v. City of Rochester, 127 N. Y., 591; Moak’s Underhill on Torts, 469; Smith v. Sedalia, 53 S. W. Rep., 907; Beach on Injunctions, sec. 1094; Carmichael v. Texarkana, 94 Fed. Rep., 561, 572; Pine v. New York, 103 Fed. Rep., 337; 2 Dillon’s Municipal Corporations, sec. 1074.
    
      Counsel for the city do not particularly urge that the city has acquired rights by prescription, although the city pleads such rights and some evidence was introduced upon that subject. The claim has been abandoned because it was shown beyond a question that it would only apply to the use of the stream in substantially the same manner and to the same extent during the whole period of prescription, and the particular use of the stream which caused the damage to the plaintiff below, arose in 1898. Cotton v. Manufacturing Co., 13 Metc., 429; Buckingham v. Smith, 10 Ohio, 299; 1 High on Injunctions, secs. 799, 800, and cases there cited.
    As a matter of law, the fact that the stream was polluted by others cannot be proved or urged .by the defendant, particularly where it appears, as it does in this case, that the pollution by the defendant would of itself be sufficient to cause the damage complained of. Beach on Injunctions, 1060; 21 Am. & Eng. Ency. Law, 691; Barrett v. Cemetery Assn., 31 L. R. A., 109; Wood on Nuisances, 689; Moore v. Waco Bldg. Assn., 28 S. W. Rep., 1033.
    In a suit by a riparian owner to enjoin the pollution of a stream, the fact that others besides the •defendant pollute the stream, is no defense. Beach •on Injunctions, sec. 1060.
    Counsel for the city urged most strenuously below and seemed to persist in their attitude here, that there is some doctrine of estoppel which might have some applicability to the proof in this cause. This we have always utterly failed to' comprehend, because every case which we examined and every textbook predicates the very essence of the doctrine of estoppel upon the assumption that the subject-matter to which the estoppel is sought to he applied, must he identical. "We complained and procured an adjudication of damage on the ground that the city was', responsible for the polluted condition of the water of Kingsbury run at the point from which we withdrew it into the mill. We cannot understand how the owners of the mill can possibly be estopped from complaining of that condition, even if it were true, as claimed, that it in its turn contributed pollution to the same stream at a lower point in its course. The effluent from the mill discharges into the stream below the intake. No lower riparian owner is objecting, and the record shows that there are none in fact who could or do make any use of the water, or would be injured by any pollution of the stream. Kinner v. Railway Co., 69 Ohio St., 339; 69 N. E. Rep., 614; 1 Story’s Equity, 60; 11 Am. & Eng. Ency. Law, 163; Cassady v. Cavenor, 37 Ia., 300; Chapman v. Rochester, 1 L. R. A., 297; Campbell v. Seaman, 63 N. Y., 568; Learned v. Castle, 78 Cal., 454; Cilly v. Cincinnati, 7 Dec. Re., 344; 2 W. L. B., 135; Leonard v. Spencer, 108 N. Y., 346; Beach on Injunctions, 1061-2; Indianapolis Water Co. v. Strawboard Co., 57 Fed. Rep., 1000; Schumacher v. Shawhan, 67 S. W. Rep., 717; Newark Board v. Passaic, Baker & Rafter, 579; Chapman v. Rochester, 110 N. Y., 273; Beach on Injunctions, secs. 1061, 1062; Indianapolis Water Co. v. American Strawboard Co., 57 Fed. Rep., p. 1000; Fox v. City of Fostoria, 8 Circ. Dec., 39; 14 C. C. R., 471.
   Shaxjck, J.

The judgment which this petition in error brings into review necessarily implies several propositions which it would be difficult to maintain. The ease in the court of common pleas- was a suit in equity to enjoin the further pollution of a stream of water and for incidental damages on account of injuries occasioned by its pollution previous to the bringing of the suit. The character of the suit was not changed by any amendment either in that court or in the circuit court. Both courts denied the principal relief by injunction but awarded incidental relief by way of damages. A jury was not waived. To the contrary, the city insisted that upon a mere question of damages it. was entitled to the intervention of a jury. The attitude of the city towards the subject of the suit did not change throughout its progress. At the close of the suit it was as well amenable to the equitable relief sought as at its beginning. The record shows that in the court of common pleas equitable relief was denied “because of the fact that the plaintiff neither owned nor was in possession of the property in the petition described at the date of the trial of this section;” and that in the circuit court there was a like denial of equitable relief “it appearing to the court that the nuisance complained of is of long standing and that considerations of public policy intervene.” According to the record, incidental relief by way of damages was awarded although the plaintiff failed to establish its right to the equitable relief primarily sought, because, in the view of one court, it had voluntarily changed its attitude towards the subject of the suit, and in the view of the other, because, of an infirmity which inhered in the equitable case of the plaintiff from the beginning. It is not a case in which, the right to the principal relief in equity being established, a court of equity, having jurisdiction of the case to award that relief, will go forward and award the plaintiff full relief by compensation in damages. Nor is it a case in which, the plaintiff’s equitable case being complete, the court will substitute a judgment for damages because, owing to a change in the relation of the defendant to the property concerned, the equitable relief would be unavailing. Nor can the procedure in the case' be justified by the precedents which give vitality to the law of lis pendens by holding that one who purchases property which is the subject of litigation purchases it subject to the event of the pending suit. Assuming that the courts below were correct in the view that the company was entitled to recover damages, when its equitable case failed for either of the reasons assigned, it should have been restricted to its action for money only in which either party would be entitled to a jury. In those states where legal and equitable remedies are administered by different courts, the plaintiff’s equitable case failing for either of the reasons here assigned, its bill in equity would be dismissed and it would be remitted to its action at law.

The judgment also implies the right of the plaintiff to recover damages on account of injuries to the property after it conveyed it to another; and this because, as appears only from the certificate in the bill of exceptions, its grantee "in open court adopted and ratified the prosecution by the record plaintiff, and by its counsel participated in the trial of the case.”

A more important question is, was the company entitled to recover damages in view of the facts which appeared upon the trial? With this question in view, the facts have been fully presented in the statement of the case, and it is not deemed necessary to repeat them here with fullness or detail. It appears that for very many years the owners of property lying by Kingsbury run for more than a mile above the company’s premises have generally treated it ■as completely diverted from the primary uses of a flowing stream to those of a public open sewer. It is sufficient for present purposes that both the company and the city, the parties who will be concluded by the judgment in the present case, have so treated it continuously and uninterruptedly for more than twenty-one years prior to the bringing of this suit. To that diversion both parties have effectively contributed, the city by discharging the contents of its sewers into the stream and the company by discharging into it the contents of its water closets ■ and a million gallons daily of noxious and polluting wastage from its paper mill. These things were done by each without protest from the other. The law applicable to these facts may be conveniently quoted from the texts of recognized authors. “It is hardly necessary to state that any private riparian proprietor upon a stream may acquire, as against other proprietors, special rights to the use of the water, in the nature of easements and servitudes far other and greater than those which the law confers upon him simply as a riparian proprietor.” Black’s Pomeroy on Water Rights, sec. 152. Servitudes are easements within the doctrine that “easements of every sort may be acquired by adverse user for the period of time limited by the statute of limitations for the right of entry upon land.” Angelí on Water Courses, sec. 208. “With respect to prescriptive rights it is conceded that the owner of land upon the margin of a natural stream may by long usage acquire the right to use the water in a manner not justified by his natural rights,” Gould on Waters, sec. 329.

That during the period named the city has increased the amount of sewage discharged into the run is unimportant. For more than twenty-one years before the beginning of this action pollution from sewers of the city, the works of the company and the multitudinous other sources mentioned in the statement of the case has rendered the waters wholly and admittedly unfit for any form of domestic use and devoted the run to sewerage purposes. The added sewers required by the growth of the city have been but a natural increase by it in the use of what was already a public sewer.

It is in vain that the company invokes the doctrine of Mansfield v. Balliett, 65 Ohio St., 451. Concerning that case it may be observed that it was an extreme application of the rules of law looking to the protection of the purity of flowing waters. Indeed it was so extreme as to bring the case into conflict with very many authorities and to prevent the concurrence in the judgment of half of the members of this court. But its correctness need not be questioned here. Differences between the cases are obvious and legally important. The stream whose waters were there the subject of controversy, after flowing by the city of Mansfield, continued to flow through the Open country, where they were continuously used for domestic purposes. The suit was brought by a riparian owner who had in no manner contributed to rendering the stream unfit for the purposes for which he insisted that the city should preserve it. It was brought before prescriptive rights had attached. In the present case the polluted portion of the stream is wholly within the city of Cleveland, where its surroundings are appropriate to the secondary use to which it has been devoted;, the suit is brought by a plaintiff whose contributions to the pollution of the stream would render it unfit for primary or domestic purposes, and it was brought after prescriptive rights had attached. If differences so vast should pass unobserved by the courts the bandage upon the eyes of imaged Justice would substantially change its symbolic meaning. Indeed it would be difficult to sustain a recovery by the present plaintiff if the city had not acquired prescriptive right to interfere with the original flowage of the water. But the case concedes the general proposition that the riparian owner has the right to the flowage of water in its natural condition as to purity, and it concedes all that was decided in Mansfield v. Balliett, for from its essential nature a servitude is always in derogation of common right.

We trust that the view of the subject which we have taken has not been influenced by a desire to enjoy the rare felicity of awarding a substantial triumph to both parties. For the operation of its plant the company can doubtless secure a supply of sufficiently pure water from sources which have become known in the thirty-five years during which resort has been had to them. And the conclusion that Kingsbury run is not within the rules of law for the protection of streams devoted to their primary uses may exempt the company from the' ruinous consequences of indictment and punishment under section 6919 and the following sections of the Revised Statutes providing for the punishment of offenses against public health.

The judgment will be reversed; and, as the case presented suggests no reason why it should further vex either of the parties or occupy the time of the courts, a final judgment will be rendered here in favor of the plaintiff in error.

Judgment accordingly.

Davis, C. J., Price, Crew, Summers and Spear, JJ., concur.  