Richmond Manufacturing Company v. Atlantic De Laine Co.

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 *109 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. *110 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. *111 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.