It is not under all circumstances an unreasonable or unlawful use of a stream to throw or discharge into it waste or impure matter, and whether, in any given case, such use would be reasonable or not, is a question for the jury. Barnard v. Sherley, 135 Ind. 547, 24 L.R.A. 568, 41 Am. St. Rep. 454, 34 N. E. 600, 35 N. E. 117; Pennsylvania Coal Co. v. Sanderson, 113 Pa. 126, 57 Am. Rep. 445, 6 Atl. 453. An upper proprietor has a right to use the water of a stream in a reasonable man ner. The facts are stated in the opinion. People v. Hulbert, 131 Mich. 156, 64 Messrs. Dysart & Ellsbury and C. D. L.R.A. 265, 100 Am. St. Rep. 588, 91 N. W. Cunningham, for appellants. Before a lower proprietor can recover damages resulting from the use of a stream by an upper proprietor, the former must establish that the use to which the stream is put by the latter is an unreasonable use, and that because of such unreasonable use on the part of the upper proprietor the lower owner has suffered appreciable injury. 211; Wood, Nuisances, 3d ed. p. 427; Merrifield v. Worcester, 110 Mass. 219, 14 Am. Rep. 592; Dumont v. Kellogg, 29 Mich. 420, 18 Am. Rep. 102; 2 Farnham, Waters, p. 1689. Messrs. Forney & Ponder, for respondents: If the offensive matter, in the inevitable course of things, must and does reach and pollute the stream, so as to materially impair its value, the cause of action is com McEvoy v. Taylor, 56 Wash. 357, 26 L.R.A. (N.S.) 222, 105 Pac. 851; Parsons | plete. v. Tennessee Coal, Iron & R. Co. Ala. 64 So. 591. No person is entitled to recover from another for damages which have been occasioned by his own act or his own neglect. Bowman v. Humphrey, 132 Iowa, 234, 6 L.R.A. (N.S.) 1111, 109 N. W. 714, 1 Ann. Cas. 131. PACKWOOD V. MENDOTA COAL & COKE Co. and the other recent cases seem to be in accord with the law on this subject as stated in the earlier notes. Thus, it has been held that "the proprietor of a mining operation has no right to discharge culm and other refuse of the mine into a stream, or to leave it where it will be carried, by ordinary floods, onto the land of other persons. If he does so dispose of it, he renders himself liable for any damages resulting therefrom to such owner. And where the material is unlawfully put into the stream, the fact that an extraordinary flood was a contributing cause in carrying it onto the plaintiff's land does not relieve the tort feasor from responsibility for his wrongful act." Eckman v. Lehigh & W. B. Coal Co. 50 Pa. Super. Ct. 427. And "one operating a coal mine on his own land is liable in damages where it appears that the mine water is diverted from its natural outlet and by artificial means raised to the surface and discharged into a stream of pure water which, by reason of its higher elevation, does not form the natural drainage of the mine." McCune v. Pittsburgh & B. Coal Co. 238 Pa. 83, 85 Atl. 1102. Nor does a statute declaring all streams to be public, and giving the right to use 1 Wood, Nuisances, 3d ed. § 428; Trevett v. Prison Asso. 98 Va. 332, 50 L.R.A. 564, 81 Am. St. Rep. 727, 36 S. E. 373; Bohan v. Port Jervis Gaslight Co. 122 N. Y. 18, 9 L.R.A. 714, 25 N. E. 246; Columbus & H. Coal & I. Co. v. Tucker, 48 Ohio St. 41, 12 L.R.A. 577, 29 Am. St. Rep. 528, 26 N. E. 630; Shearm. & Redf. Neg. §§ 733, 734; them for mining purposes, give to one so using a stream the right to send his waste material or débris down the stream, to the destruction or substantial injury of the riparian rights of users of water below for irrigation purposes. Arizona Copper Co. v. Gillespie, 230 U. S. 46, 57 L. ed. 1384, 33 Sup. Ct. Rep. 1104, affirming 12 Ariz. 190, 100 Pac. 465, which is cited in note in 22 L.R.A. (N.S.) 276. And under a statute making it unlawful to throw into, or allow to enter, any stream in the state, any matter deleterious to the propagation of fish, an operator of a coal mine has no right to drain sulphur or mine water, deleterious to the propogation of fish, from his mine into a stream, even though such water is a product of nature, and the operator is under the legal duty to drain it from the mine, and the stream in question is the natural receptacle of such drainage, and there is no known reasonable or practical way to eliminate the sulphur and other objectionable ingredients in such water before discharging it from the mine and letting it enter the stream. State v. Southern Coal & Transp. Co. 71 W. Va. 470, 43 L.R.A. (N.S.) 401, 76 S. E. 970. But a riparian owner who, in order to gain the benefit of water from a stream, turns it out of its course over his land, Frost v. Berkeley Phosphate Co. 42 S. C. | H. B. Bowling Coal Co. v. Ruffner, 117 402, 26 L.R.A. 693, 46 Am. St. Rep. 736, 20 Tenn. 180, 9 L.R.A. (N.S.) 923, 100 S. W. S. E. 280; 29 Cyc. 1183; 21 Am. & Eng. 116, 10 Ann. Cas. 581; Shearm. & Redf. Enc. Law, 699; Brown & Bros. v. Illius, Neg. §§ 733, 734; Columbus & H. Coal & 27 Conn. 84, 71 Am. Dec. 49; Lowe v. Pros- I. Co. v. Tucker, 48 Ohio St. 41, 12 L.R.A. pect Hill Cemetery Asso. 58 Neb. 94, 46 577, 29 Am. St. Rep. 528, 26 N. E. 630; L.R.A. 237, 78 N. W. 488; Merrifield v. Brandenburg v. Zeigler, 62 S. C. 18, 55 Lombard, 13 Allen, 16, 90 Am. Dec. 172; | L.R.A. 414, 89 Am. St. Rep. 887, 39 S. E. Strobel v. Kerr Salt Co. 164 N. Y. 303, 51 | 792; Lavner v. Independent Light & Water L.R.A. 687, 79 Am. St. Rep. 643, 58 N. E. 142, 21 Mor. Min. Rep. 38. The substantial impairment by one of the legal rights of another is unreasonable, and therefore not to be permitted. Cooley, Torts, 588; Jackman v. Arlington Mills, 137 Mass. 277; Bohan v. Port Jervis Gaslight Co. 122 N. Y. 18, 9 L.R.A. 711, 25 N. E. 246; Tetherington v. Donk Bros. Coal & Coke Co. 232 Ill. 522, 83 N. E. 1048. One who so uses his property as to directly and substantially injure another is made to respond in damages. Straight v. Hover, 79 Ohio St. 263, 22 L.R.A.(N.S.) 276, 87 N. E. 174; Frost v. Berkeley Phosphate Co. 42 S. C. 402, 26 L.R.A. 693, 46 Am. St. Rep. 736, 20 S. E. 280; Trevett v. Prison Asso. 98 Va. 332, 50 L.R.A. 564, 81 Am. St. Rep. 727, 36 S. E. 373; York v. Davidson, 39 Or. 81, 65 Pac. 819, 21 Mor. Min. Rep. 452; Gavigan v. Atlantic Ref. Co. 186 Pa. 604, 40 Atl. 834; Faulkenbury v. Wells, 28 Tex. Civ. App. 621, 68 S. W. 327; Day v. Louisville Coal & Coke Co. 60 W. Va. 27, 10 L.R.A. (N.S.) 167, 53 S. E. 776; Beach v. Sterling Iron & Zinc Co. 54 N. J. Eq. 65, 33 Atl. 286; knowing that it is impregnated with mineral matter from a mine, cannot hold the mine owner liable for the injury caused to his land and vegetation by such mineral matter. Glenn v. Crescent Coal Co. 145 Ky. 137, 37 L.R.A. (N.S.) 197, 140 S. W. 43. And "a joint action cannot be maintained against several proprietors of coal operations acting independently, who cast culm into a stream, which is washed onto the land of another, but each is liable for the proportion of damages he caused, and that only;" and "the difficulty of ascertaining with mathematical exactness the proportion of damages caused by each tort feasor a difficulty caused by himself-is not ground for denying the plaintiff the right to recover a substantial sum; evidence which reasonably tends to show the relative proportion, and is the best evidence of which the case is susceptible, is sufficient to warrant submission of the question to the jury under appropriate instructions." Eckman v. Lehigh & W. B. Coal Co. supra. As to join liability in such circumstances, see notes in 10 L.R.A. (N.S.) 167, and 40 L.R.A. (N.S.) 102. An injunction, also, will lie to prevent the further pollution of a stream of pure water at a higher elevation than a coal mine, and not forming the natural drainage thereof, Co. 74 Wash. 373, 133 Pac. 592; Patrick v. Smith, 75 Wash. 411, 48 L.R.A. (N.S.) 740, 134 Pac. 1076, 6 N. C. C. A. 108. Parker, J., delivered the opinion of the court: The plaintiffs seek recovery of damages which they claim resulted from the pollution of a natural stream of water running through their farm, by the unlawful acts of the defendants. Trial before the court and a jury resulted in verdict and judgment in favor of the plaintiffs for the sum of $1,000, from which the defendants have appealed. Respondents have been for some forty years past the owners of a farm in Lewis county, which in recent years they have developed into a valuable dairy farm through which flows a natural stream of water known as Packwood creek. The water flowing in this stream is by nature pure and fresh, well suited for domestic and farm purposes, and especially for watering stock of all kinds. It has a continuous flow at all seasons of the year, and in its natural state of purity adds materiby diverting the water in the mine from its natural outlet and by artificial means raising it to the surface and discharging it into the stream, unless it is clearly shown that the natural conditions make it impracticable to discharge the water in any other way, or that the expense of so doing would be so great as substantially to deprive the mine owner of his property. McCune v. Pittsburgh & B. Coal Co. supra. And a lower riparian owner who has suffered, and will continue to suffer, a special injury not borne by the public, from the pollution of a river by mining operations, is entitled to injunctive relief, notwithstanding the contamination of the waters of the river constitutes a public nuisance affecting a large community of riparian owners and users of the water for purposes of irrigation, for the abatement of which a public prosecution might be maintained. Arizona Copper Co. v. Gillespie, supra. But injunction will not lie to restrain the casting of mine water into a stream to the injury of lower riparian land, where the land is not injured except when the water is turned out of its course by the complainant, or the channel is permitted by him to fill up so as to cause the water to spread over the adjoining land. Glenn v. Crescent Coal Co. supra. A. C. W. that the water of the stream was thereby rendered unfit for stock watering purposes. This, we think, must have been equally apparent to the jury. ally to the value of respondents' farm. Ap-, from the washing of the coal, especially in pellant Mendota Coal & Coke Company, hereinafter called the company, has since the year 1910 owned and operated a coal mine near Packwood creek, some 2 miles above respondents' farm. Appellant Johnson has had the active management of the company's mine during the whole of this period. In preparing the coal for market, the company washes it by the use of water taken from Packwood creek, which, after flowing through the washing machinery, flows back into the stream, carrying with it quantities of fine coal, rendering, as the evidence tends to show, the water flowing in the stream through respondents' farm unfit for domestic and farm purposes, and especially unfit for watering stock, which is its principal value to respondents. In the operation of its mine the company maintains some fifty dwelling houses for its employees, from which the sewage is drained to cesspools situated a short distance from the banks of Packwood creek. This is also alleged by respondents in their complaint to contribute to the pollution of the water of the stream flowing through their farm. The company is the owner of the land upon which its mine and washing machine and dwelling houses are situated, and by virtue of the ownership of that land has riparian rights, in the water of Packwood creek equal with the riparian rights of respondents. Contention is made by counsel for appellants that the evidence is not sufficient to sustain the verdict and judgment, and that, in any event, the verdict is excessive. After a careful review of all the evidence in the record before us, we have reached the conclusion that neither of these contentions can be sustained. We do not feel called upon to analyze the evidence here. We deem it sufficient to say that we are satisfied that the evidence is ample to sustain the conclusion that respondents were damaged in the sum of $1,000 by the pollution of the waters of the creek from the washing of the coal, though the evidence is not free from conflict upon that question. The evidence tending to show damage from the maintenance of cesspools in connection with the dwelling houses of the employees of the company, it must be conceded, is not at all convincing, even assuming that it is uncontradicted. This, however, would not warrant our interfering with the verdict upon the ground of insufficiency of the evidence, since the evidence of damage from the washing of the coal is sufficient to sustain the verdict. It may be here remarked that the record, read as a whole, renders it quite apparent that the principal damage claimed by respondents was that resulting Several of the assignments of error made and relied upon by counsel for appellants challenge the ruling of the trial court in giving instructions and refusing to give others requested. Instructions requested by counsel for appellants rest upon the theory of the company's right to the reasonable use of the water of Packwood creek, even if the water should by such use become materially polluted and respondents substantially damaged thereby. The court gave to the jury, among others, the following instructions: "I instruct you that, although you find that the contamination or pollution complained of is not poisonous nor deleterious to stock or to human beings, nevertheless if it is of such nature as to render the water less fit for use for domestic, farm, or dairy purposes, either by man or beast, then in law the said stream has been polluted and contaminated, for which plaintiffs are entitled to recover damages, if they have suffered any damages, and, if you find that defendants have done such acts as to render said stream less fit for such uses, your verdict must be for the plaintiffs in such amount as you shall find that defendants have injured the plaintiffs in that respect." This instruction is complained of as rendering appellants liable for even the slightest pollution of the water of Packwood creek, and thereby depriving the company of the reasonable use of the water as a riparian owner. It is possible there would be some merit in this contention if this instruction stood alone. It is, however, only a very general statement of the company's liability touching its right to the use of the water. It was followed by an instruction given to the jury by the court, as follows: "It is indeed the right of a riparian owner to have the water of a stream come to him in its natural purity, and this rule is recognized, as well as the right to have it flow to his land in its natural flow in volume, but in reference to this, as well as the air, it is not every interference with the water that imparts impurities that is actionable, but only such as imparts to the water such impurities as substantially impair its value for the ordinard purposes of life, and render it measurably unfit for domestic purposes, and thus impairs the comfortable or beneficial enjoyment of property in the vicinity. So, even though you should find that the water of Packwood creek, as it now flows, is not as pure and wholesome as it was previous to the time the Mendota Coal & Coke Com pany commenced the operation of its mine | lower riparian owner. This, we think, is the at Mendota, yet if, by the operation of that fair import of these instructions. mine, the defendants have not substantially In Snow v. Parsons, 28 Vt. 459, 462, 67 or materially polluted the water of said Pack- | wood creek, then under the law your verdict must be for the defendants." These instructions, read together, we think, state the correct measure of the limit of the company's riparian right to the use of the water of Packwood creek, in the light of respondents' equal riparian right therein, and in view of the fact that the company's use of the water was concededly not for domestic or farm purposes. Putting aside, for the moment, consideration of the possible pollution of the stream by cesspools maintained by the company, we are constrained to hold that, in view of the fact that the pollution of the water was caused, as the jury evidently found, from the washing of coal by the company, its liability for damages to respondents depends upon the extent of detriment to them from that cause. That is, if the acts of the company resulted in the pollution of the water of the stream flowing through respondents' farm to a substantial degree, and rendered it materially less suitable for domestic and farm purposes, and they thereby suffered substantial damages, appellants became liable therefor, though this might not be the limit of the company's right to the use of the water as riparian owner, were it putting the water to ordinary domestic and farm uses, under the law as announced by us in McEvoy v. Taylor, 56 Wash. 357, 26 L.R.A. (N.S.) 222, 105 Pac. 851, where we held in effect that the use of the water of a stream by a riparian owner for ordinary farm and domestic purposes, such as allowing his horses, cattle, and fowl free access thereto, was a reasonable use, and did not render him liable in damages to a lower riparian owner entitled to the use of the water for farm and domestic purposes, though such use rendered the water materially less pure, to such lower riparian owner's substantial damage. Am. Dec. 723, in considering the alleged pollution of a stream by a manufacturing plant, Chief Justice Redfield, speaking for the court, said: "The reasonableness of such use must determine the right, and this must depend upon the extent of detriment to the riparian proprietors below. If it essentially impairs the use below, then it is unreasonable and unlawful, unless it is a thing altogether indispensable to any beneficial use at every point of the stream. An extent of deposit which might be of no account in some streams might seriously affect the usefulness of others. So, too, a kind of deposit which would affect one stream seriously would be of little importance in another. There is no doubt one must be allowed to use a stream in such a manner as to make it useful to himself, even if it do produce slight inconvenience to those below. This is true of everything which we use in common with others. The air is somewhat corrupted by the most ordinary use; large manufacturing establishments affect it still more seriously; and some, by reason of their vicinity to a numerous population, become so offensive and destructive of comfort, and health even, as to be regarded as common nuisances. Within reasonable limits, those who have a common interest in the use of air and running water must submit to small inconveniences to afford a disproportionate advantage to others. It seems to us that this question of the reasonableness of the use of a stream, when it is not settled by custom, and is in its nature doubtful, should always be regarded as one of fact, to be determined by the tribunal trying the facts." These observations of the learned chief justice are quoted with approval in the text of 2 Cooley, Torts, 3d ed. p. 1216. In Merrifield v. Lombard, 13 Allen, 16, 90 Am. Dec. 172, Chief Justice Bigelow, considering the alleged pollution of a stream by a manufacturing plant, observed: "The The use of the water of a stream for in- law requires of a party through whose land dustrial or manufacturing purposes by a a natural water course passes, that he riparian owner, by which it is polluted with should use the water in such manner as not a foreign substance, we think, is quite an- to destroy, impair. or materially affect the other matter, when it comes to testing such beneficial appropriation of it by the proowner's right as against a lower riparian prietors of land below on the same stream. owner entitled to the use of the water for Each riparian owner has the right to use farm and domestic purposes. In such cases the water for any reasonable and proper at least, and possibly some others, we believe purpose, as it flows through his land, subthe law to be that the right to the reason- ject to the restriction that he shall not able use of water by a riparian owner for thereby deprive others of a like use and enmanufacturing or industrial purposes, re- joyment of the stream as it runs through sulting in the pollution of the water with their land. Any diversion or obstruction foreign substances, is limited to the extent of the water which substantially diminishes that such use must not materially pollute the volume of the stream, so that it does the water, to the substantial damage of the not flow ut currere solebat, or which defiles and corrupts it to such a degree as essen- | No one has a right to injure that land. It tially to impair its purity and prevent the use of it for any of the reasonable and proper purposes to which running water is usually applied, such as irrigation, the propulsion of machinery, or consumption for domestic use, is an infringement of the right of other owners of land through which a water course runs, and creates a nuisance, for which those thereby injured are entitled to a remedy. An injury to the purity or quality of the water, to the detriment of other riparian owners, constitutes, in legal effect, a wrong and an invasion of private right, in like manner as a permanent obstruction or diversion of the water." In Day v. Louisville Coal & Coke Co. 60 W. Va. 27, 10 L.R.A. (N.S.) 167, 53 S. E. 776, there was involved the pollution of a stream by the casting of coal and coke refuse from a mine and coke ovens in and near the water of a stream, to the damage of a lower riparian owner of farm lands bordering thereon, rendering the water “unfit for agricultural and domestic purposes." Discussing the company's claimed right to make such use of the stream by virtue of its riparian ownership, Justice Brannon very pertinently observed: "This case involves principles very important everywhere, but especially important in this state at present and in the future; but those principles are old and have been called into requisition through many, many years in actions for the pollution of streams, and casting into them hurtful things, and depositing them upon lands of riparian owners on the stream below. The defendant contends that, as it was using its property in carrying on a lawful business very useful to the public, it is exempt from liability, as it was only exercising its rights. We are told by the able brief of the defendant's counsel that the affirmance of this judgment will be vastly hurtful and disastrous to the mining and coke interests of West Virginia, and have a tendency to detract from the value of our land, and hinder the development of the great wealth of coal and iron in the bowels of our mountains, and will be subversive of great public policy, which demands the development of our wealth therein, and tends to the weal of the whole people of the state, and that a few individuals injured thereby must be without redress. We cannot accede to this broad proposition. The established maxim of centuries is Sic utere tuo ut alienum non lædas (so use your own property that you do not injure another). That rule is almost equal to the Golden Rule in importance, and must never be lost sight of in the daily doings and transactions of organized society. A man has land upon a stream. He is its sole lord. is protected by the Constitution. If one up the stream in his works, be they ever so lawful, honorable, and necessary for private weal or public weal, do thereby injure the land of that owner further down by unlawful invasion of it, by casting upon it things damaging it, or by polluting the purity of the water, rendering it unfit for the owner's consumption, as it passes through his land, the man up the stream must answer in damages. One man without fault is injured by another. That is enough for liability." Greene v. Nunnemacher, 36 Wis. 50; Tetherington v. Donk Bros. Coal & Coke Co. 232 Ill. 522, 83 N. E. 1048; Bowman v. Humphrey, 124 Iowa, 744, 100 N. W. 854; Strobel v. Kerr Salt Co. 164 N. Y. 303, 51 L.R.A. 687, 79 Am. St. Rep. 643, 58 N. E. 142, 21 Mor. Min. Rep. 38; H. B. Bowling Coal Co. v. Ruffner, 117 Tenn. 180, 9 L.R.A. (N.S.) 923, 100 S. W. 116, 10 Ann. Cas. 581; Drake v. Lady Ensley Coal, Iron & R. Co. 24 L.R.A. 64, and note, (102 Ala. 501, 48 Am. St. Rep. 77, 14 So. 749); Young v. Bankier Distillery Co. [1893] A. C. 691, 69 L. T. N. S. 838, 58 J. P. 100. It has been well said: "It is difficult, if not impossible, to declare a rule in language so clear and precise as that it can be ap plied with certainty to every case that may arise." Tennessee Coal, Iron & R. Co. v. Hamilton, 100 Ala. 252, 261, 46 Am. St. Rep. 48, 14 So. 167. We believe it safe, however, to say that, in the absence of rights resting upon prescription or custom, neither of which is here involved, there can be no more practical or just rule of liability resting upon riparian owners using the water of a stream for industrial or manufacturing purposes, and thereby polluting the water with foreign substances, than that damage caused by such use and pollution of the water renders such user liable to a lower riparian owner entitled to use of the water for domestic and farm purposes, whenever such damage is of a substantial nature. This of necessity results in the question being one for the jury, except in cases where the evidence is such as to leave no room for honest difference of opinion as to the substantial nature of the damage. Our attention is called to the case of Pennsylvania Coal Co. v. Sanderson, 113 Pa. 126, 57 Am. Rep. 445, 6 Atl. 453, which counsel for appellants principally rely upon in support of their contentions in this branch of the case. That decision has received some criticism from the courts both in this country and England. We think, however, it is, in any event, distinguishable from the case before us. The stream involved in that case was polluted by the flow |