Holsman v. Boiling Spring Bleaching Co. That in the fall of that year, in consequence of large quantities of chemical natter and other impurities discharged from the works of the defendants into the stream above the land of the complainants, the water was filled with offensive matter, discolored and polluted, and rendered unfit for all domestic purposes, for procuring ice or for watering cattle, killing the fish and producing offensive odors, which infected the air of the neighborhood and penetrated the dwelling, so that the complainants have been compelled to refrain from all use of the said water for family or other purposes; by reason whereof the complainants are unable with comfort to use or enjoy their said property, as they have been accustomed and of right ought to do, or to sell the same for a fair price. The bill prays that the defendants may be restrained by injunction from injuring the water of the said stream for domestic purposes, and from discharging into it any chemical ingredients to pollute the air or water, or injure or destroy the fish in the said ponds. The defendants, by their answer, do not deny the erection of their works, as charged in the bill, or the discharge of chemicals and other matter therefrom into the stream; but they allege that the nuisances of which the complainants complain are not occasioned thereby, but by other causes; that they existed before the erection of the bleaching works, and so far as they may exist, are occasioned by mineral elements in the water operating upon vegetable matter in the complainants' ponds or by other causes. It denies that the chemicals used in the business of bleaching are noxious or unhealthful, and alleges that the principal ingredient is chlorine, known and used as a deodorizer and healthful disinfectant. It alleges that the lands and mill site used and occupied by the defendants had been used and occupied as a mill site for more than twenty years before the purchase by Daniel Holsman of the complainants' premises, and that the business of fulling and dyeing had been there carried on for more than twenty years, and that the owners have a right Holsman v. Boiling Spring Bleaching Co. to use said stream for manufacturing purposes, although the same may taint and discolor the water. The defendants, by their answer, further allege that they have commenced erecting, and will soon finish a bank or screen, through which they will cause all the waters of the stream that, may come in contact with any drugs or chemicals used in the factory, or in contact with the goods bleached with such drugs or chemicals, to be filtered, which will eliminate from the water, before it passes upon the lands of the complainants, all such chemicals and drugs, and will cause the water to flow from the lands of the defendants as pure as when it enters thereon. The cause has been put at issue, and is brought on for final hearing upon the pleadings and evidence. That the water in the stream upon the complainants' land has been, since the erection of the defendants' works, from some cause discolored, polluted, and rendered unfit for domestic or ornamental purposes, and that the complainants' premises have been thereby rendered uncomfortable, inconvenient, and undesirable for the purposes for which they were designed and for which they are used, is not denied by the defendants' answer, and is fully established by the evidence. I think the evidence renders it equally certain that those evils are occasioned by the bleaching works of the defendants. They arose after the works were erected and went into operation. They are perceived when the works have been in operation, and their magnitude bears a perceptible proportion to the amount of business done by the defendants. The stream upon which the works are erected is at all times very small, being but a mere spring run, and in the heat of summer its volume is materially diminished. The works are very extensive, and the amount of chemicals used in the process of bleaching very great. One of the witnesses, whose evidence probably furnishes a reliable proximate view of the amount and character of materials used and lost in the process of bleaching, furnishes this state. ment: Holsman v. Boiling Spring Bleaching Co. In the process of bleaching, an ordinary charge of goods which are bleached together consists of three tons. There will be required to bleach this quantity of goods, on an average, the following amount of chemicals, viz., lime 225 pounds, vitrol 125 pounds, soda ash 325 pounds, chlorine 150 pounds, making 825 pounds of chemicals used in the process. The goods will lose fifteen per cent., or 900 pounds of vegetable oil and fibre, making, besides the starch extracted from the goods, 1725 pounds of foreign matter thrown into the stream from every charge. The mills, in full operation, turn out more than two charges per week, making over 3400 pounds of chemicals, vegetable oil, and fibre, besides starch, thrown into the stream weekly. When it is remembered that the stream is very small, and this amount of foreign matter is constantly being thrown into it within one quarter of a mile of the complainants' premises, it is certainly no task upon our credulity to believe that the water must be most seriously polluted by the process. Nor is this conclusion in any wise shaken by any of the material facts proved on the part of the defence. It may be, as testified by witnesses on the part of the defendants, that an equal or greater amount of foreign matter from a bleaching establishment may be thrown into a river or large stream without producing any perceptible injury at a short distance from the works; that upon smaller streams the operations of bleaching establishments may be rendered innocuous by means of filters or other mechanical contrivances; that a large proportion of the bleaching materials are healthful disinfectants, and are rapidly deposited, and that the mineral ingredients of the water in the watercourse on the complainants' lands, as it flows naturally from the springs, may so act upon the vegetable matter upon the banks or bottom of the stream as to produce, especially in the drought and heat of summer, offensive odors independently of the defendants' works. All these facts may be fully admitted, and yet the case made by the complainants' evidence remain unshaken. The defendants themselves, by their pleadings and evidence, manifestly Holsman v. Boiling Spring Bleaching Co. evince their apprehension of danger to the purity of the stream and the rights of the adjoining proprietors from the operations of bleaching. They prove that filters are erected and used upon small streams where bleach works are in operation to purify the water after leaving the works. By their answer, they allege that they propose to erect a filter, by which all drugs and chemicals will be eliminated from the water before it passes upon the complainants' lands. The evidence shows that a filter was constructed by the defendants, as proposed in their answer, but that from defective construction, or some other cause, it signally failed to perform its office. It would be unprofitable to enter into an examination in detail of the very voluminous testimony in the cause. A careful examination of the evidence satisfactorily establishes the existence of the injury, and that it is occasioned by the works of the defendants. The facts being ascertained, is this a proper case for the interference of the court by injunction? 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 natural and accustomed course, without obstruction, diversion, or corruption. The right extends to the quality as well as to the quantity of the water. If, therefore, an adjoining proprietor corrupts the water, an action upon the case lies for the injury. Aldred's case, Coke 59; Mason v. Hill, 5 Barn. & Ad. 1; Magor v. Chadwick, 11 Ad. & El. 571; Stoneheever v. Farrar, 6 Ad. & El. (N. S.) 730; Howell v. McCoy, 3 Rawle's R. 397; Wood v. Wand, 3 Excheq. 72; Phear on Water Rights 29; Angell on Watercourses, § 136. 9 The Court of Chancery has a concurrent jurisdiction with courts of law, by injunction, equally clear and well established, in cases of private nuisance. And it is a familiar exercise of the power of the court to prevent by injunction injury to watercourses by obstruction or diversion. Finch v. Resbridger, 2 Vern. 390; Bush v. Western, Prec. in Chan. 530; Gardner v. Village of Newburgh, 2 Johns. Ch. R 165; Shields v. Arndt, 3 Green's Ch. R. 234. Holsman v. Boiling Spring Bleaching Co. The right of the riparian proprietor, says Chancellor Kent, to the use and enjoyment of a stream of water in its natural state is as sacred as the right to the soil itself. It is a part of the freehold of which no man can be disseized but by lawful judgment of his peers or by due process of law. 2 Johns. Ch. R. 166. A disturbance or deprivation of that right is an irreparable injury, for which an injunction will issue. If the deprivation of the use of the water by diversion constitutes such an irreparable injury as will be restrained by injunction, the deprivation of its use, by so corrupting it as to render it unfit for use, is an equally irreparable injury entitling the party injured to the like preventive remedy. To entitle the party to the remedy by injunction in cases of private nuisance, the right must be clear, and the injury must be such as from its nature is not susceptible of being adequately compensated for by damages, or such as from its long continuance may occasion a constantly recurring grievance, which cannot be prevented otherwise than by injunc tion. Where the nuisance operates to destroy health or to diminish the comfort of a dwelling an action at law furnishes no adequate remedy, and the party injured is entitled to protection by injunction. Daniell's Ch. Prac. 1858; 2 Story's Eq. Jur., § 926, 927. The remedy was applied to the case of the pollution of a watercourse in Wood v. Sutliffe, 8 Eng. Law and Eq. 217; Lewis v. Stein, 16 Alabama R. 214. It is urged that the right of the complainants is not clear, and must therefore be first established at law before an injunction will issue. Where the complainant seeks protection in the enjoyment of a natural watercourse upon his land the right will ordinarily be regarded as clear; and the mere fact that the defendant denies the right by his answer, or sets up title in himself by adverse user, will not entitle him to an issue before the allowance of an injunction. Bush v. Western, Prec. |