Whalen v. Union Bag & Paper Co.

Per Curiam: The plaintiff is owner of lands through which Kayaderosseras creek, in the county of Saratoga,- flows, and the defendant owns and operates a pulp mill located on said creek above the lands of plaintiff. The defendant discharges its refuse into said creek and this action is_hrought to restrain such pollution, and has resulted in a. decree perpetually restraining the defendant from so doing, together with damages. ■ The defendant’s plant represents an investment of hundreds of thousands of dollars, and hi comparison the plaintiff’s farm is of insignificant value. The stream is also polluted by the refuse from a tannery belonging to the American Hide and Leather Company, and other mills situated thereon. The learned trial court did not apportion the damages and charge the defendant with that part of the damage which it caused. If the defendant shall discontinue the' discharge of its refuse into the creek the water will still be polluted by the refuse from the tannery, as the trial court expressly finds.. ■ ■ Where several persons contribute to the pollution of a stream . it is proper to apportion the damages. (Sammons v. City of Gloversville, 34 Misc. Rep. 459; affd., 67 App. Div. 628; 175 N. Y. 346.) Notwithstanding the fact that the defendant may have bought its peace at a previous time by paying the plaintiff damages at the rate allowed in the judgment appealed from, we think the damages recovered are altogether too much for that part of the injury which the defendant inflicted, and that $100 per year is an ample allowance. The creek runs through mere pasture and meadow land of the plaintiff, and, while the water, of the. creek is made foul and.offensive from the aggregate pollution, the injury to the plaintiff is insignificant com [3] pared to the injury which would result to the defendant in compelling it to discontinue the operation of its pulp mill. A court of equity is not bound to issue an injunction when it will produce great public or private mischief, merely for the purpose of protecting a technical or unsubstantial right. (Gray v. M. R. Co., 128 N. Y. 499, 509; Loukes v. Payne, 140 App. Div. 776.) • Whether a court of equity will enjoin a wrongful act where the damages are not substantial depends upon the circumstances. The facts show that it would not materially aid the plaintiff in his endeavor to purify the waters if the defendant were enjoined from emptying its mill refuse, into the creek. The judgment should be modified by eliminating that part' granting an injunction and providing that the plaintiff may at any time apply at the foot of the judgment for an injunction upon showing that otherwise the creek is reasonably pure, or that the other parties illegally contaminating it are properly enjoined or have ceased to pollute the same, and that upon showing such facts and making it appear that the ends of justice so require, an injunction substantially as mentioned in the judgment, or such as the court may direct, shall issue, or, at the plaintiff’s election, that he may take such action for such other or further relief as he may be advised on account of any injury to his property hereafter occurring; and the judgment is reversed upon the law and facts and new trial granted, with costs to appellant to abide event, unless plaintiff stipulates to reduce the damages to $100 per year, in which case the judgment is so modified, and as modified hereby affirmed, without costs to either party. All concurred, except Smith, P. J., and Betts, J., dissenting, the latter in opinion.