Inhabitants of Brookline v. Mackintosh

Devens, J. Assuming, but without deciding, that the remedies provided by the St. of 1878, c. 183, to prevent the pollution of rivers, streams and ponds, used as sources of water supply by cities or towns, are not exclusive, and that, on a proper case made, the court, under its general chancery jurisdiction, may restrain any nuisance committed by the defendant in fouling the waters of Charles River, we proceed to consider whether such a case is set forth in the report as entitles the plaintiff to the exercise of this jurisdiction. By the St. of 1872, c. 343, the plaintiff was entitled to take, hold and convey, for domestic and other necessary use, one and a half millions of gallons of water daily from Charles River, and also to take and hold, by purchase or otherwise, such lands as might be necessary for obtaining, using, distributing and disposing of said water. It was empowered to build reservoirs, aqueducts and dams, and to regulate the use of the water. By § 6, it was made liable to pay any damages that might be sustained by any person in his property by the taking of the water from the stream, but no liability was imposed — 221 — upon it to pay damages to any person whose lawful use of the water, under rights previously acquired by prescription or otherwise, might diminish its purity.* The plaintiff accepted the act, declared its intention to take the water to the extent of the full amount allowed, and obtained by purchase and taking the lands necessary for all the purposes of its water supply along the bank of Charles River, and has erected all necessary structures. The water is not taken directly from the river, but by the intervention of a filtering gallery, into which the water passes by percolation through the walls. This is not the less a taking of the water from the river. Ætna Mills v. Brookline, 127 Mass. 69. The defendant is pursuing a useful and necessary business, but one which cannot be conducted without the use of water, which, when returned to the stream, is to some extent polluted by his use. The water is found to be of substantially the same quality, according to chemical analysis, where the plaintiff takes its supply, that it was ascertained to be before the plaintiff decided to take the water under the St. of 1872. As the plaintiff now obtains its water by filtration, no actual damage is done to the quality of the water it uses, and no damage is done to the property of the town, either in the value of its land or waterworks. If the town should hereafter take its water directly from the stream there would be a possibility that some poisonous arsenic, used by the defendant at his works, might possibly be carried, especially during freshets, into the water used by the town, but necessarily in very small quantities suspended in the water. — 222 — But there is no present purpose on the part of the town to obtain its supply except through the earth filter. No present actual damage resulting from any act of the de- ■ fendant is therefore shown by the plaintiff, but it contends that the sending down of poisonous substances, which, under certain circumstances, might possibly injure the water as used by it, if it should take the water directly from the stream, is an injury to its right thus to take, such as entitles it to an injunction, even if there is no present purpose of exercising this right. It contends that it obtained a right to take pure water from Charles River; that any use, prescriptive or otherwise, to foul the stream in the exercise of a manufacture was taken by implication, when the town took the waters by eminent domain, and that the owner of the privilege had his remedy therefor in damages. This is not the true construction of the St. of 1872. The town paid for the quantity of water which it took, as it thereby diminished the supply which the mills and other estates on the banks- of the river would otherwise receive. General laws had previously been passed as to defiling streams which were the sources of water supply. Gen. Sts. c. 166, § 6. The St. of 1872 provided, in § 13, penalties for injuries to water which had been taken by the town, but an examination shows that this applies to the water after it had been actually taken, and was in its pipes or reservoirs, and not to that which was its source of supply. The protection of this was left to the law as it then existed or as it might afterwards exist. The St. of 1878, e. 183, legislated fully on this subject, providing very efficient remedies for such injuries as would make the water deleterious to the public. While arguments drawn from subsequent legislation are not very forcible, § 3 of that statute not only contemplates that there may exist easements for drainage and discharge of refuse matter, by legislative grant or by prescription, in the streams which are the sources of water supply, but provides that they shall not be destroyed or impaired. It may be that any use of the waters of a stream, however long continued, is liable to be controlled, impaired or destroyed, if the legislation of the State shall treat the existence of such a use as incompatible with the health, safety and welfare of the community, and that, even if the market value of property is — 223 — diminished, no right is violated, as the mode in which property is enjoyed may be subject to the rights of all in their health and safety, and subordinate to general laws established for their protection. Commonwealth v. Upton, 6 Gray, 473. When a long established use of water in a respectable and necessary business is thus impaired or destroyed by legislation, it will be so clearly by express terms or necessary inference; and, if done for the benefit of others, proper compensation will be made therefor. The town possessed a franchise under the law of the State, which gave it the authority to take a certain quantity of water, together with the land necessary for obtaining and afterwards using it. Proper compensation was provided therefor, but no compensation was provided for rights then lawfully existing in the use of the water not taken. It was for the plaintiff to determine, as it must take subject to all the diminution in purity that might be occasioned by a lawful use of it, whether it was such a stream as answered or could be made to answer the purpose. It could not expect riparian owners to surrender rights therein, unless they were, in the interest of public welfare, by a general law forbidden to exercise them, or unless proper compensation was provided therefor. The plaintiff is not to be treated as strictly a riparian proprietor. Its rights are derived, not from its ownership or occupancy of the bank, but from the legislation which authorizes it so to own or occupy. It draws the water for other purposes, and in greater quantities, than any such proprietor could do, and for this object only it occupies the bank. But we may profitably consider what are the rules which have been adopted for the protection of riparian and other rights in real estate by courts of equity, in deciding whether those of the plaintiff are invaded by acts like those of the defendant where no actual existing damage is shown. They will be found to divide themselves into two classes: those where the right invaded arises from contract, and the acts done are a violation of the contract; and those where the acts done are such as would by prescription destroy or diminish the right of the plaintiff, if persisted in or continued. Where any contract is made of which there is a breach, the law implies at least nominal damage; nor will it make any — 224 — difference that the form of the action is in tort, if the right ■violated lies in contract. Thus, the failure of one to pay immediately a check which it was his duty to pay, entitles the holder to nominal damages, although the check be paid before action. Marzetti v. Williams, 1 B. & Ad. 415. It is upon, this principle that the case of Peck v. Conway, 119 Mass. 546, rests, which the plaintiff erroneously deems to show that his rights are so invaded that he is entitled to an injunction. If one purchased a lot of land upon the condition that he would not for fifty years erect a house upon it without the assent of his grantor, it would not be an answer to say that no damage was occasioned either to the person or the property of him in whose favor the condition was made it is for the obligee in the contract to say whether he insisted on its terms. In Peck v. Conway, ubi supra, by a reservation in a deed to B., it was provided that no building was to be erected by the said B., his heirs or assigns on the land conveyed, and the grantee of B. was held bound by this reservation to the holder of the estate for the benefit of which the reservation was made. This class of cases has but a remote bearing, if any, upon a- case where the parties are strangers to each other, asserting distinct and adverse rights. By the other class of cases, it is settled that, when a person is asserting a right which at the time does no damage, but which may operate by long continuance to destroy or diminish the right of the plaintiff, even if that right is not then exercised by the plaintiff and there is no present intention of exercising it, he will be restrained by injunction. Webb v. Portland Manuf. Co. 3 Sumner, 189. In Crossley v. Lightowler, L. R. 3 Eq. 279, 298, this reason is distinctly given; and, without commenting upon the cases individually, we find none among those cited by the plaintiff where there was not either a present damage, as by the erection of a permanent structure directly interfering with the plaintiff’s rights, or where the acts done by the defendant were not such as, if continued for a sufficiently long period, would interfere with or destroy an admitted right of the plaintiff. It is important, therefore, to consider whether, if the quantity of refuse or poisonous matter now brought down from the works of the defendant be permitted to continue to be turned into the — 225 — river, the defendant will gain any rights as against the plaintiff, should it determine hereafter to take the water directly from the stream. The plaintiff has made its election to take the water, and also as to the manner of its taking. We assume that its right of choice in the manner in which it shall take the water from the stream is not exhausted, and that hereafter, should it for any reason desire to do so, it may adopt any other reasonable mode of withdrawing the water from the stream. If the defendant by his present conduct will gain any right on his own part which he does not now possess, and which would prevent this, a good reason why he should be now enjoined is afforded. The defendant has either a good prescriptive right to do what he does, or he has not. If he has such a right, his exercise of it is doing no harm to any rights which may exist in the plaintiff in its future action, and he is acquiring nothing as against the plaintiff which can hereafter inconvenience it. If he has no such right, either because his prescriptive right, if it existed, was taken away by the taking of the water, or because his use is such that it cannot be prescribed for, or because he has not exercised his asserted right adversely for the period of twenty years, he cannot now gain one, since the acts done by him, as the case is stated by the plaintiff, might be deleterious to public health, and are expressly forbidden by the St. of 1878, a. 183, §§ 2, 3. From the time this statute went into operation, it impliedly prevented the prescription for such a use in a source of water supply from running. The plaintiff deems that such is not its effect, and that, although an act may be prohibited or punished, it will not prevent an individual from justifying by prescription as against another. But it is not easy to see how rights can be acquired by prescription against any one, by acts done in violation of the absolute prohibition of a public statute. Such acts when expressly prohibited are in their inception and continuance unlawful as against the public authority, and they cannot become lawful as against the individual members of the public, however long they may have been exercised. When the statute forbids anything to be done, the right to do it is not to be granted or acquired. However long a nuisance may have been continued, those affected thereby are entitled to a remedy — 226 — .to the extent at least .to which the acts by which it was continued were forbidden by law. Mill v. Commissioner of New Forest, 18 C. B. 60. Rochdale. Canal v. Radcliffe, 18 Q. B. 287. Staffordshire Worcestershire Canal v. Birmingham Canal, L. R. 1 H. L. 254. Rhodes v. Whitehead, 27 Texas, 304. In Mills v. Wend, 9 Wend. 315, a dam set the water back and rendered it stagnant, thereby causing disease; and it was ■ held that the length of time which it had stood would not prevent its being an actionable nuisance to the extent to which it was indictable, although the plaintiff could not sustain an action for damage done to his land by flowing, as to that extent the owner of the dam had acquired, and could acquire, a right by long user. But whether an individual could or could not, as against himself, grant a permission to do those acts expressly forbidden by statute, one standing in the position of the plaintiff could not. Prescription assumes that there has been a grant, which by lapse of time has been lost. It necessarily assumes that there is some one having a capacity to grant. No board and no authority exists which has the power under the law to grant the right to corrupt or pollute the quality of the water for domestic uses, or to render it deleterious to health, in streams which are used as sources of supply to cities or towns. The plaintiff has certainly no such power : it is a corporation performing a public duty; the property which it holds is in public trust; it could not, either by express grant, or by submission to user, or by simple neglect, enable a person to complete a title by prescription, when the acts done in the assertion of such a title are prohibited by statute. Mill v. Commissioner of New Forest, Rochdale Canal v. Radcliffe, and Staffordshire & Worcestershire Canal v. Birmingham Canal, ubi supra. The acts done by the defendant which corrupt or impair the quality of the water, if done without right after the passage of the St. of 1878, are of this character. The provision in that statute, that prescriptive rights of drainage or discharge are not impaired or destroyed to the extent to which they lawfully exist at the date of the passage of the act, implies that none are to be gained thereafter in streams which are the source of water supply, if deleterious to health. We do not therefore perceive that — 227 — any right can be gained against the plaintiff, or that it needs any injunction to protect its right to take the water directly from the stream, or that this right is now invaded. The plaintiff contends that the St. of 1878, e. 183, in prohibiting drainage or refuse matter from being put into the river so as to corrupt or impair the quality of water, makes it an offence to do so not only where the water supply is taken, but also at or near the factory, and that the evidence shows that the water is there corrupted. Even if this construction is correct, which we do not decide, the plaintiff cannot ask an injunction on that account, as such corruption at that place would not be an injury to it as a private nuisance, even if it might be to others, or even if, as a public nuisance, it is remediable by indictment. Nor should an injunction be granted on account of any danger that the works of the defendant may be increased, and then injury be done to the water where the plaintiff receives it, or that injury may be now done which cannot be proved by analysis, or that hereafter in the near future the plaintiff may wish to increase its supply, of water. Apprehended danger is indeed a ground for issuing an injunction, but it must be apprehended upon a state of facts which show it to be real and immediate. We have preferred to dispose of the case upon the facts as they are now presented, without discussing the inquiry whether, since the St. of 1878, e. 183, the present is the proper form of remedy, or considering many other important questions ably argued by counsel on both sides. Should hereafter a different state of facts be shown in evidence and brought before the court, it may be necessary to consider them. Upon the facts as they now appear, the Bill must be dismissed. Footnotes [*] The language of this section is as follows: “ The said town of Brook-line shall be liable to pay all damages that shall be sustained by any person or persons in their property, by the taking of the waters of said Charles River, or other source -of supply, or any part thereof, as authorized by this act, or by the taking of any land, rights of way, water rights or easements, or by the erection of any dams, or the construction of any aqueducts, reservoirs, water-ways or other works for the purposes of this act; and if the owner or owners of any property which shall be taken as aforesaid, or other person or persons sustaining damages as aforesaid, shall not agree on the damages to be paid therefor, he or they may apply by petition for an assessment of the damages at any time within three years from the taking of the said property, or the construction of dams or other works occasioning damages as aforesaid, and not afterwards, to the Superior Court in the county in which the same are situated.”