Strobel v. Kerr Salt Company - Court of Appeals of New York, October 2, 1900

Material Information

Strobel v. Kerr Salt Company - Court of Appeals of New York, October 2, 1900
58 Northeastern Reporter


Subjects / Keywords:
Streams ( jstor )
Defendants ( jstor )
Water usage ( jstor )
Spatial Coverage:
North America -- United States of America -- Florida


Jake Varn Collection - Strobel v. Kerr Salt Company - Court of Appeals of New York, October 2, 1900 (JDV Box 86)
General Note:
Box 22, Folder 3 ( Court Cases of Water Rights in States Other Than Florida - 1990 ), Item 16
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point, and by a different method of con-
structing the abutments and bridge, was
without application to the court, under the
statute already cited, and illegal ab initio.
If the defendant could make the change, to
which reference has been made, without the
order of the court, it might have just as well
removed its route and crossing 3,500 feet to
the westward instead of 85 feet, if it had
served Its purpose so to do. The attitude of
the people as to this point seems to be that
of insisting upon it unless the relief is lim-
ited to placing the bridge abutment parallel
with the highway.
We thus reach the vital question, whether
it Is competent for the court, in this proceed-
ing, the highway commissioner of the town
of Veteran having been deprived of his day
in court, as accorded him by statute, to make
permanent an encroachment of stone abut-
ments upon the highway of 16 feet 5 inches in
the aggregate, provided the route of the high-
way is changed by acquiring additional land
so that the traveler may pass in safety, over a
straight course, between these projecting
points of stone. These encroaching abut-
ments are illegal, a public nuisance, and the
trial court was without power to perpetuate
them. We have been pointed to no statute
or case authorizing the action of the court
below. The defendant should be compelled
to place its bridge abutments parallel with
the highway, as they existed at another loca-
tion from 1849 to 1895.
The defendant, in further support of its
appeal. Insists that errors were committed
upon the trial which require a reversal of the
(1) That the court erred in instructing the
jury to find a verdict that the construction
erected by the defendant had unnecessarily
impaired the usefulness of the highway. A
perusal of the record satisfies us that the en-
croachment on the highway Is practically un-
disputed, is a public nuisance, and that a
verdict to the contrary would be set aside as
against the evidence.
(2) That the court erred as to certain rul-
Ings on questions of evidence. We have ex-
amined all the exceptions taken on the trial,
and find no reversible error.
(3) That the court below exercised its dis-
cretion in directing the manner in which the
defendant should perform its duty. We hold
that the modification of the order of the trial
court is -made necessary by reason of legal
errors duly presented by the record, and no
review is attempted of the discretion of the
court below.
The order of the trial court should be mod-
ified by striking therefrom the words, "or by
purchasing sufficient land so as to lay out
the highway as indicated upon the defend-
ant's map (Exhibit A), of December 31, 1S97,
upon which map the parallel red lines indi-
cate the locations in which the said railway
company must construct stone walls not to
exceed three feet In height, or some barrier
of like height." The order of the appellate

division sl modified so as to conform to the
above modification of the order of the trial
court. As so modified, both of said orders
are affirmed, with costs to the relator.

WERNER, JJ., concur. O'BRIEN, J. not
voting. LANDON, J., not sitting.

Ordered accordingly.

(Court of Appeals of New York. Oct. 2,
1. Where a salt manufacturer adjacent to a
flowing stream draws water therefrom in such
quantity as to diminish its flow, and in using it
in his operations renders the rest of the stream
so salty as to unfi t for use by lower riparian
owners, such use of the stream is such an un-
reasonable one as entitles lower riparian owners
to restrain it, since they are entitled to a fair
participation in the use of such water, which
cannot be abridged by the convenience or ni-
cessity of the business of an upper riparian
2. In an action by lower riparian owners to
restrain a salt manufacturer from polluting a
flowing stream with salt, the fact that other
manufacturers are doing the same as defendant
cannot preclude relief.
3. Lower riparian owners having land sepa-
rate from that of each other, abutting on the
same stream, may sue jointly to restrain the
pollution of the stream, as they all have a com-
mon grievance for an injury of the same kind.
Appeal from supreme court, appellate di-
vision, Fourth department.
Action by William D. Strobel and others
against the Kerr Salt Company. From a
judgment of the appellate division (49 N. Y.
Supp. 1144) affirming a judgment for de-
fendant, plaintiffs appeal. Reversed.
This action was commenced in 1892 by 14
plaintiffs, who own various mills on Oatka
creek, a natural stream running through the
counties of Wyoming, Genesee, and Monroe,
against the defendant, a domestic corpora-
tion engaged in the manufacture of salt at a
point on said creek above the mills of the
plaintiffs, to restrain it from diverting or
polluting the waters thereof. The action is
for an injunction only, as the plaintiffs in
their complaint expressly reserve "to them-
selves and each of them their several dam-
ages, which they will seek to re-
cover in several actions at law in due time
to be prosecuted for that purpose." In its
answer the defendant denied that It had di-
verted or polluted the water of the stream,
except that, in carrying on the business of
manufacturing salt upon its own premises,
it had made a reasonable use of a small por-
tion of said water, and alleged that such use
was necessary and lawful. Upon the trial.
in 1893, it appeared that Oatka creek for-
merly contained pure water, which was val-
uable for various purposes, and especially



(N.ZI, :I


for use In manufacturing. The plaintiffs
and their predecessors in title have owned
mills and manufactories situated upon said
stream from 1% to 30 miles below the salt
works of the defendant, and have operated
them by the water thereof for many years,
one at least since 1825. While they still
depend mainly upon water power to run
their machinery, some of them are now
using steam to a certain extent. There is
less water in the stream at present than
there was a few years ago, and the plain-
tiffs attribute the deficiency mainly to the
diversion of water by the salt works of the
defendant and others, recently erected,
while the defendant insists that it is owing
to the clearing away of forests and -the
drainage of swamps. The evidence does not
show any material change in the forests of
the valley during the past 10 or 15 years,
but it appears that streams in Western New
York have generally lessened in size during
the past 25 or 30 years. Since 1886 the de-
fendant has carried on the business of man-
ufacturing salt at a point upon said stream
above the mills of the plaintiffs. The wa-
tershed above its works comprises about 14
square miles, and that below about 140. Its
plant consists of 250 acres of land lying up-
on the creek, with extensive buildings, ma-
chinery, and appliances for the manufacture
of salt. It has sunk seven wells upon its
premises, each about 2,000 feet deep, at the
bottom of which rock salt is found in two
beds, which vary in depth from 30 to 60
feet. The salt is not mined, but water is
pumped from a reservoir fed by a race from
Oatka creek, forced down one pipe to tne
bed of salt, where it speedily becomes sat-
urated, and thence, In the form of brine, is
forced by hydraulic pressure up another pipe
into storage tanks upon the surface of the
ground. It is then drawn by gravity
through a system of pipes into shallow pans
and grainers, which are widely spread over
the land of the defendant, where it is evap-
orated by exposure to the air and by means
of steam and artificial heat. The function
of the water is to bring the salt to the sur-
face in solution, where it is first purified by
the use of lime, and then evaporated, leav-
ing a residuum of salt suitable for domestic
purposes. All the water that is forced down
into the earth and up again must be turned
into vapor before the solid salt can be ex-
tracted therefrom. The water taken by the
defendant for this purpose, and for use in
its boilers to run the necessary machinery,
is about 20,000 cubic feet, or 150,000 gallons,
a day, which is more than 104 gallons per
minute, and is about 4 per cent. of the flow
of the stream in low water at the mills of
the plaintiffs nearest the defendant's works.
The part totally consumed in the boilers is
very slight, as the steam is condensed into
water by artificial means, and used over
again. The leakage from the salt after it is
removed from the evaporating pans falls
upon the surface of the ground, and scales,

which are a combination of lime and salt
formed during the process of manufacture,
are thrown from the grainers and pans up-
on the land of the defendant, all of which is
within the drainage area of the Oatka.
Much of this refuse, mixed with ashes, was
used to fill up low places about the build-
ings so as to protect them in high water.
The stream is small, but no complaint is
made of any deficiency in the supply of
water except during the dry season of the
year, when the plaintiffs have less than they
need to operate their mills, and less than
they had before the erection of the defend-
ant's works. The waters of the creek have
become so salt as at times to be unfit for wa-
tering cattle as well as for many other uses,
both domestic and mechanical. The effect
has been to destroy the most of the fish
and certain kinds of vegetation growing in
the stream or upon the margin. There
are 12 other salt works, somewhat widely
separated, situated upon said creek below
those of the defendant, which are operated
in the same way, and contribute their quota
of diminution and pollution. The drainage
from several villages also affects the purity
of the water, especially when the stream is
low. Salt is the leading industry of the
Oatka valley, and only one company actu-
ally mines by means of shafts sunk to the
beds of salt. The salt so mined is dark,
impure, and unfit for ordinary uses, unless it
Is dissolved, purified, and the water evap-
orated. The amount made daily by the de-
fendant is about 860 barrels of pure white
merchantable salt, but the full capacity of
its works is nearly 1,200 barrels. It fur-
nishes employment to more than 100 men
and women. The capacity of'the other salt
manufactories, not including the one which
mines its salt in bulk, is about 9,800 barrels
daily. It requires 13.35 cubic feet of brine,
of the usual strength, or more than 100 gal-
lons, to make a barrel of salt. The effect
of taking 150,000 gallons of water from the
stream without restoring any part of it. or
making any allowance for evaporation,
would deprive the plaintiffs of 3.8 horse
power during an entire day of 24 hours, or
more than 9 horse power for a working day
of 10 hours, assuming that the water when
not in use is saved by means of dams. If
the production by the other works involves
a proportionate use of the water, the num-
ber of horse power taken away would be
increased accordingly. Salt water rusts ma-
chinery, deranges the operation of boilers,
and requires the frequent replacement of
pipes, cocks, etc., although it is used gen-
erally in steam vessels on the high seas.
Upon the trial, which took place about
seven years after the defendant had estab-
lished its plant, the conflict in the testimony
was mainly confined to the degree of diminu-
tion and pollution. The amount of diminu-
tion depends largely upon the alleged return
of the water to the stream after it had been
converted into vapor and allowed to escape

-N. Y.)


in the air. The amount of pollution depends
largely upon when the samples, of water,
which were analyzed by chemists, were taken
from the stream, as those taken in high
water contained a small amount of salt when
compared with those taken during low water.
The trial court found, among other facts, that
"the configuration of the ground on either
side of the stream is such that the water or
vapor escaping from said boilers pr grainers,
as it condenses into water, naturally returns
to the same stream; that, in the
process of manufacturing salt, some water
containing salt in solution has flowed by such
natural drainage from said works into said
stream; that since the beginning of this ac-
tion the defendant has constructed a trench
between its works and the said stream, so
located and constructed as to carry any water
containing salt in solution that might escape
by drainage from defendant's works into its
said salt wells; that it has not been shown
that defendant diverts the water of the
stream, or that it makes any other use of it,
except in the mining and manufacture of salt
on its own lands, as hereinbefore set forth,
or that it has caused or permitted the escape
of foreign substances into said stream, except
by the natural drainage from its own lands
as aforesaid. The use of the waters of said
creek, made as aforesaid by the defendant, is
a proper and necessary use of the same upon
its said premises in the transaction of its said
business, and is a reasonable use thereof,
such as it was lawfully entitled to make, and
not prejudicial to the rights of the plaintiffs."
It was found, as a conclusion of law, that
the plaintiffs were not entitled to any part of
the relief demanded in their complaint, which
was dismissed upon the merits, with costs.
Upon appeal to the appellate division, the
judgment entered accordingly was affirmed
without an opinion, except that one of the
justices who dissented wrote elaborately in
favor of reversal. Seven only of the plain-
tiffs have appealed to this court.
Henry S. Bacon, for appellants. Norris
Morey and Frank W. Brown, for respond-

VANN, J. (after stating the facts). As the
findings of the trial court are general and
somewhat indefinite, construction is neces-
sary by reading them in the light both of the
uncontradicted evidence and of the evidence
most favorable to the defendant When, for
instance, the learned trial judge found no
diversion of the water and no use of it except
in making salt upon the defendant's own
lands, he did not find that there was no di-.
version or pollution, and, if he had, it would
have been an error of law, because opposed
to the uncontradicted evidence, and open to
.review by us because the affirmance was not
unanimous. So, when he found that the use
of the water by the defendant was proper,
necessary, and reasonable, and such as it was
lawfully entitled to make, and hot prejudi-

cial to the rights of the plaintiffs, It was to
some extent a conclusion of law, and, in so
far as It was a finding of fact, so general as
to require construction through the aid of
other facts, either found or uncontradicted.
The same is true of the finding that the de-
fendant has not unlawfully diverted or pol-
luted the waters of said stream to the injury
or prejudice of the plaintiffs; for as there
was manifestly some diversion and some pol-
lution, with some injury and some prejudice,
the finding is either against the uncontra-
dicted evidence, or simply reflects the opinion
of the trial judge that the degree of diminu-
tion, pollution, and injury was not so sub-
stantial as to require action by a court of
equity. While the trial judge found that,
owing to the hills bounding the valley, the
vapor caused by evaporating salt on so large
a scale, "as it condenses into water, natu-
rally returns to said stream," he did not and
could not find that it all so returned, or state
the proportion that escaped. It was impossi-
ble for any witness to testify what part of
the vapor rising in a narrow valley about
two miles wide from summit to summit with
comparatively low hills on either side, was
carried away and dissipated by the wind, and
what part returned to the earth, within the
limits of the valley, in the form of mist or
rain. The witnesses could not tell from ob-
servation, nor state as a fact, where such an
invisible, elastic, and elusive substance went.
There was no evidence of an increase in the
rain or moisture. In cold weather, when the
water is high, condensation would be rapid,
but in warm weather, when the water is
scarce, condensation would be slow. Some of
the settling tanks are on the hillside, half a
mile from the stream. The measurements
made below the works included the return
by condensation, and there was no evidence
to justify the conclusion that all the water
diverted reached the stream again. Hudson
v. Railroad Co., 145 N. Y. 408, 412, 40 N. E.
8. The counsel for the defendant states in
his points that "it is a very moderate esti-
mate to say that at least two-thirds of the
escaping steam, on the average, must be con-
densed and returned to the water supply of
Oatka creek."
The theory upon which the trial judge pro-
ceeded to judgment is illustrated in his opin-
ion, where he says: "The question is wheth-
er it is a reasonable use of the stream to al-
low the water impregnated with salt to take
its natural course into the stream, impairing
its use for drinking purposes, or otherwise
affecting its use by the lower proprietors, to
their injury." Discussing the question, he
further said: "Since the salt is a component
part of the soil itself, and the owner has a
legal right to excavate it and place it upon
the surface, it would be an unwarrantable
stretch of the powers of a court of equity to
compel its removal, merely upon the ground
that the surface water, becoming impregnat-
ed with the salt, and taking its natural course
into a stream, renders its waters unsuitable


- I I

(N. Y.


for drinking purposes, or causes injury to the
boilers and machinery of a mill situated far
down on the banks of the stream. The
defendant, as a riparian owner, has a right
to the natural and necessary drainage of any
salt water which may escape from the salt
works Into the stream. The water used was
returned to the stream in as .clear and pure
a condition as the nature of the operations
upon the lands would permit. The only obli-
gation resting upon the defendant is to exer-
cise ordinary care so as not to inflict unneces-
sary injury to the lower proprietors." Re-
ferring to the case of Barnard v. Sherley,
135 Ind. 547, 34 N. E.' 600, 35 N. E. 117, which
followed the Sanderson Case, hereinafter
alluded to, he quoted with apparent approval
the following therefrom: "Where a work is
lawful in itself, and cannot be carried on else-
where than where nature located it, or where
public necessity requires it to be, then those
liable to receive injury from it have a right
only to demand that it shall be conducted with
all due care, so as to give as little annoy-
ance as may be reasonably expected, and any
injury that may result, notwithstanding such
care in the management of the work, must
be borne without compensation. It is, then,
a case in which the interest and convenience
of the individual must give way to the gen
eral good." Thus, the trial judge was of
the opinion that the plaintiffs, although they
and their predecessors had used the waters
of the stream in their mills and on their
farms for half a century, could not prevent
the defendant, which long afterwards, and
with knowledge of the facts, established its
plant, from devoting the stream to a new
and unusual use, diverting the water, and
turning "a fresh-water stream into a salt-wa-
ter stream." This would amount to a virtual
confiscation of the property of small owners
in the interest of a strong combination of
capital. The use made by the defendant of.
the water of the stream is new and peculiar,
for it involves its utter destruction as water.
Until it is turned into vapor it refuses to
give up its salt, so that it must cease to be
water or fail to accomplish the defendant's
purpose. That purpose is to utilize only by
destroying, not in a scientific sense of course,
but in a practical sense. The loss is not in-
cidental, by diminution through the process
of using the water, as in most cases present-
ed to the courts, but is absolute, by means
of dissipation through the atmosphere. The
diversion is as complete as if the water had
been pumped over the hills bordering the
Oatka valley and turned into another creek;
for diversion, as applied to water courses,
means taking water from a stream and not
returning it so that the lower riparian owner
can use it. Parker v. Griswold, 17 Conn.
288, 289. By taking nearly 150 gallons every
minute during a working day of 10 hours, the
defendant diverted that quantity of water
from its natural course. The evidence, prac-
tically undisputed, shows that the water of
the stream, which was fresh before the erec-
58 N.E.-10

tion of the defendant's works, is now salt.
especially In a dry time. The witnesses who
tested it agree that It "tastes salt," and the
effect of salt in the "water was obvious to
the senses in various ways, as by small sta-
lactites of salt formed at leaky spots in the
pipes of machinery, the formation of visible
crystals on stones in the stream, the rusting
of machinery, the foaming of water in the
boilers, and the destruction of vegetation.
The owners of portable steam engines, who
formerly used the water in their boilers,
abandoned It and resorted to rain or well wa-
ter. Wells near the stream were affected to
some extent. In some places the salt killed
vegetation, including willow trees. It de-
stroyed fish in large numbers. Cattle and
horses refused to drink the water, although
some drank it when they had nothing else to
drink. One of the plaintiffs boiled three
quarts of water taken from the race leading
to his mill, and obtained nearly a tablespoon-
ful of salt. Another could grind only about
half as much grain as he had previously
ground at the same season of the year.
All this evidence, and other of like char-
acter, stands substantially uncontradicted, as
it is not a contradiction for a witness to say
that he did not observe these effects, when
he did not examine in order to see what the
facts were. The only dispute was in rela-
tion to the degree of pollution, and the de-
fendant's evidence is substantially adopted
for the purpose of this review. One of its
experts, who for 20 years was the state chem-
ist at the Onondaga Salt Springs, testified
that in a sample taken in December, 1892,
above the works, he found in a gallon of wa-
ter .086 grains of salt, while a specimen tak-
en right below the works contained 305.01
grains. A specimen taken at the mill of the
plaintiff Munger, which is a mile and one-
half below the defendant's works, and is
above all the other salt plants, afforded 99.08
grains; one from the mill of the plaintiff
Martin, about two miles below, 75.69; another
from Brown's pond, still further down the
stream, 82.14. These samples were taken by
the chemist himself, and, except that last
.mentioned, were unaffected by any other
source of pollution than the defendant's
works. Thirty-three other specimens, obtain-
ed in April, 1893, still further down the
stream, after many small rivulets, as well as
the drainage from other salt works, had
emptied in, but not taken by the chemist
himself, showed much less salt to the gallon,
and averaged between 30 and 40 grains, only
two of them exceeding 50. An analysis made
by the plaintiffs' chemist of 44 specimens
taken by a hydraulic engineer in September,
October, and November, 1892, at points from
one-half to one mile apart, all along the
stream below defendant's works, showed a
much larger proportion of salt, averaging,
even after rejecting 11 of the highest, which
went up into the thousands, from 100 to 300
grains to the gallon. The samples of the
plaintiffs were taken from the stream after

N. Y.)


the commencement of the action and before
the trial, while the defendant's were taken
shortly before or during the trial, and after
the changes had been made in order to pre-
vent the salt water from reaching the creek.
While all water contains some salt, that
which contains less than 50 grains to the gal-
lon is, according to the testimony of defend-
ant's expert, suitable for use in steam boil-
ers. Brine of full strength .contains 18,072
grains to the gallon.
The testimony as to the amount of di-
minution is less definite and satisfactory
than that relating to pollution, owing to the
difficulty of measuring water flowing in a
stream. It is undisputed, however, that the
water diverted, as measured by defendant's
expert, by "four independent but simultane-
ous methods," including Weirr measure-
ment," which Included all water returned
to the stream, if used by the plaintiffs to the
best possible advantage, would be equal to
nine horse power daily. One year it
amounted to 4 per cent. of the flow at plain-
tiff Munger's mill during the whole month
of July. The uncontradicted evidence and
the evidence most favorable to the defend-
ant shows such a degree of pollution and
such an amount of diminution as to make it
certain, in our judgment, that the trial
judge, in his findings, meant that neither
was in excess of what the defendant had a
lawful right to put in or take out of the
stream, in conducting a lawful business up-
on its own premises. This theory is con-
firmed by his opinion, as he relies largely
upon a case in Pennsylvania which held
that one operating a coal mine in the or-
dinary and usual manner may, upon his
own lands, drain or pump the water that
percolates into his mine into a stream
which forms the natural drainage basin in
which the mine is situate, although the
quantity of water may thereby be increased,
and its quality so affected as to render it
totally unfit for domestic purposes by the
lower riparian owners. Coal Co. v. Sander-
son, 113 Pa. St. 126, 6 Atl. 453. That case
had a varied history, and it was not until it
came before the court for the fourth time
that, influenced by the necessities of a great
industry, the rule was laid' down as stated.
The case was first considered in 1878. when
the claim of the lower riparian owner was
sustained upon the principle of "Sic utere
tuo ut alienum non lIedas." In reply to the
argument of counsel that "the law must be
adjusted to our great industrial interests,"
the court said: "In the argument here the
ground was distinctly taken that immense
public and private interests demand that
the right which the defendants exercised In
ejecting the water from their mine should
have recognition and be established. It was
said that in more than a thousand collieries
In the-anthracite regions 'of the state the
mining of coal can only be carried on by
pumping out the percolating water which
accumulates in every tunnel, slope, and

shaft, and which, when brought to the sur-
face, must find its way by a natural flow to
some surface stream. It was urged that the
law should be adjusted to the exigencies of
the great industrial interests of the com-
monwealth, and that the production of an
indispensable mineral, reaching to the an-
nual extent of twenty millions of tons,
should not be crippled and endangered by
adopting a rule that would make colliers
answerable in damages for corrupting a
stream into which mine water would nat-
urally run. The consequences that
would flow from the adoption of the doc-
trine contended for could be readily fore-
told. Relaxation of legal liabilities and re-
mission of legal duties to meet the current
needs of great business organizations, in one
direction, would logically be followed by the
same relaxation and remission, on the same
grounds, in all other directions. One Inva-
sion of individual right would follow an-
other, and it might be only a question of
time when, under the operations of even a
single colliery, a whole countryside would
be depopulated." In 1880 the case was re-
viewed a second time, and it was again
urged that the rights of the riparian owners
should yield to the immense public interest
involved. The court, however, reaffirmed
its former decision, and, among other things,
said: "The mining operations of the de-
fendant do not involve the public welfare,
but are conducted solely for the purposes of
private gain. Incidentally all lawful indus-
tries result in the general good. They are,
however, not the less instituted and con-
ducted for private gain, and are used and
enjoyed as private rights over which the
public has no control It follows that none
of them, however important, can justly
claim the right to take and use the property
of the citizen without compensation." Coal
Co. v. Sanderson, 94 Pa. St. 302, 307. In
1883 the court heard the case for the third
time, with the same result; but on the last
review, in 1886, by a vote of four to three,
it reversed its previous decisions, and held
that "the use and enjoyment of a stream of
pure water for domestic purposes by the
lower riparian owners, who purchased their
land, built their houses, and laid out their
grounds before the opening of the coal mine,
the acidulated waters from which rendered
the stream entirely useless for domestic pur-
poses, must ex necessitate give way to the
interests of the community, in order to per-
mit the development of the natural re-
sources of the country, and to make possible
the prosecution of the lawful business of
mining coal." The extensive coal mines of
the state of Pennsylvania were regarded as
of sufficient importance to warrant the court
in departing from the law as previously laid
down by itself in the same case, as well as
from the rule which prevails In England and
in this country, except in some of the states
where mining is extensively carried on, and
there is no way to get rid of the water in


I ---v I -aPI-~p 9C

I I -

pN. Y.


the mines except by pumping it into the
streams. Iron Co. v. Dye, 87 Ala. 470, 6
South. 192. Courts of the highest standing
have refused to follow the Sanderson Case.
Iron Co. v. Tucker, 48 Ohio St. 41, 26 N. E.
c30; Beach v. Zinc Co., 54 N. J. Eq. 65, 33
Atl. 286; Young v. District Co., App. Cas.
691. And its doctrine was finally limited by
the court which announced it. Robb v.
Carnegie Bros. & Co., 145 Pa. St. 338, 22
Atl. 649. The court below, however, mani-
festly followed the Pennsylvania rule. with-
out limitation. Mann v. Mining Co., 49 App.
Div. 454, 459, 63 N. Y. Supp. 752. We have
never adopted that rule in this state, and
no public necessity exists therefore, even if it
would ever warrant the courts in relaxing
rules for the protection of property of small
value in the interest of some business re-
quired to develop the resources of the state,
and in which much capital had embarked,
giving employment to a great number of
There is nothing about the case now before
us to take it out of the general rules govern-
ing the rights of riparian owners. Those
rules are well established in this state, and,
so far as material to the case before us, are,
in the absence of modification by grant or pre-
scription, as follows: A riparian owner is
entitled to a reasonable use of the water
flowing by his premises in a natural stream,
as an incident to his ownership of the soil,
and to have it transmitted to him without
sensible alteration in quality or unreasonable
diminution in quantity. While he does not
own the running water, he has the right to a
reasonable use of it as it passes by his land.
As all other owners upon the same stream
have the same right, the right of no one is
absolute, but is qualified by the right of the
others to have the stream substantially pre-
served in its natural size, flow, and purity,
and to protection against material diversion
or pollution. This is the common right of all,
which must not be interfered with by any.
The use by each must therefore be consistent
with the rights of the others, and the maxim
of "Sic utere tuo" observed by all. The rule
of the ancient common law is still in force:
"Aqua currit et debet currere ut currere
solebat." Consumption by watering cattle,
temporary detention by dams in order to run
machinery, irrigation, when not out of pro-
portion to the size of the stream, and some
other familiar uses, although in fact a diver-
sion of the water involving some loss, are
not regarded as an unlawful diversion, but
are allowed as a necessary incident to the
use, in order to effect the highest average
benefit to all the riparian owners. As the
enjoyment of each must be according to his
opportunity, and the upper owner has the
first chance, the lower owners must submit
to such loss as is caused by reasonable use.
Surrounding circumstances, such as the size
and velocity of the stream, the usage of the
country, the extent of the injury, convenience
in doing business, and the indispensable pub-

lic necessity of cities and villages for drain-
age, are also taken into consideration, so that
a use which, under certain circumstances, is
held reasonable, under different circumstances
would be held unreasonable. It is also ma-
terial, sometimes, to ascertain which party
first erected his works and began to appropri-
ate the water. Clinton v. Myers, 46 N. Y.
511; Rubber Co. v. Rothery, 132 N. Y. 298,
30 N. E. 841; Smith v. City of Brooklyn, 160
N. Y. 357, 54 N. E. 787; Prentice v. Geiger,
74 N. Y. 341: Bullard v. Manufacturing Co.,
77 N. Y. 525; Merritt v. Brinkerhoff, 17
Johns. 308; Crocker v. Bragg, 10 Wend. 260;
Arnold v. Foot, 12 Wend. 330; Tyler v. Wilk-
inson, 4 Mason, 397, Fed. Cas. No. 14,312;
Coal Co. v. Tucker, 48 Ohio, 41, 26 N. E. 630;
Beach v. Zinc Co., 54 N. J. Eq. 65, 33 Atl.
286; Smelting Co. v. Tipping, 11 H. L. Cas.
642; Crossley v. Lightowler, L. R. 3 Eq. 279,
2 Ch. App. 478; Pennington v. Coal Co., 5
Ch. Div. 769; Attorney General v. Lunatic
Asylum, 4 Ch. App. 146; Hodgkinson v. En-
nor, 4 Best & S. 229; 3 Kent, Comm. 439;
Gould, Waters, 219; Higgins, Water Cours-
es, 132; Washb. Easem. (4th Ed.) 215; 1
Wood, Nuis. J 364, 427.
The question of reasonable use is generally
a question of fact, but whether the undis-
puted facts, and the necessary inferences
therefrom, establish an unreasonable use, is
a question of law. When the diversion, or
pollution, which is treated as a form of di-
version, is caused by a new and extraordinary
method of using the water, hitherto unknown
in the state, and such method not only per-
manently diverts a large quantity of water
from the stream, but also renders the rest
so salt, at times, that cattle will not drink it
unless forced to by necessity, fish are de-
stroyed in great numbers, vegetation is killed,
and machinery rusted, such use, as a matter
of law, is unreasonable and entitles the lower
riparian owner to relief. Where the natural
and necessary result of the place selected,
and the method adopted by an upper riparian
owner in the conduct of his business, is to
cause material injury .to the property of an
owner below, a court of equity will exercise
its power to restrain, on account of the in-
adequacy of the remedy at law, and in order
to prevent a multiplicity of suits. The lower
riparian owners are entitled to a fair partici-
pation in the use of the water, and their
rights cannot be cut down by the convenience
or necessity of the defendant's business.
"The necessities of one man's business can-
not be the standard of another's rights in a
thing which belongs to both." Wheatley v.
Chrisman, 24 Pa. St. 298. While the courts
will not overlook the needs of important man-
ufacturing interests, nor hamper them for
trifling causes, they will not permit sub-
stantial injury to neighboring property, with
a small but long-established business, for the
purpose of enabling a new and great industry
to flourish. They will not change the law
relating to the ownership and use of property
in order to accommodate a great business en-

N. Y.)


terprise. According to the old and familiar
rule, every man must so use his own prop-
erty as not to injure that of his neighbor;
and the fact that he has invested much money
and employs many men in carrying on a
lawful and useful business upon his own land
does not change the rule, nor permit him to
permanently prevent a material portion of
the water of a natural stream from flowing
over the land of a lower riparian owner, or to
so pollute the rest of the stream as to render
it unfit for ordinary use. The fact that other
salt manufacturers are doing the same thing
as the defendant, instead of preventing relief,
may require it. "Where there is a large num-
ber of persons mining on a small stream, if
each should deteriorate the water a little,
although the injury from the act of one might
be small, the combined result of the acts of
all might render the water utterly unfit for
further use; and, if each could successfully
defend an action on the ground that his act
alone did not materially affect the water, the
prior appropriator might be deprived of its
use, and at the same time be without a
remedy." Hill v. Smith, 32 Cal. 166; Wood-
year v. Schaefer, 40 Am. Rep. 419; Sherman
v. Iron-Works Co., 87 Mass. 213; Mayor, etc.,
,of Baltimore v. Warren Mfg. Co., 59 Md. 96;
Crossley v. Lightowler, L. R. 3 Eq. 279, 2
Ch. App. 478; Pennington v. Coal Co., 5 Ch.
Div. 769, 772. In Garwood v. Railroad Co.,
116 N. Y. 649, 22 N. E. 396, the diversion, as
shown by the record on file in this court, was
less than that testified to by the defendant's
witnesses in the case before us. Even if the
damages are slight, where the act complained
of is such that by its repetition or continu-
ance it may become the foundation or evi-
dence of an adverse right, a court of equity
will interpose by injunction. Knitting Co. v.
Dean, 162 N. Y. 278, 280, 56 N. E. 757.
The objection that the plaintiffs have no
cause of action common to all, and hence that
they cannot sue jointly, is unsound. While
each owns a distinct piece of land, situated
upon a part of the stream separate from that
abutted upon by the land of every other own-
er, they all have a common grievance against
the defendant for an injury of the same kind,
inflicted at the same time and by the same
acts. The common injury, although differing
in degree as to each owner, makes a common
interest, and warrants a common remedy.
Emery v. Erskine, 66 Barb. 9, 14; Reid v.
Gifford, Hopk. Ch. 416, 477; Murray v. Hay,
1 Barb. Ch. 59, 62; Blunt v. Hay, 4 Sandf.
Ch. 362.
It does not follow from these views that,
If upon another trial the facts are unchanged,
the defendant and the other salt manufac-
turers will be compelled to make such terms
as they can; for a court of equity, with its
'plastic powers, can require, as a condition
of withholding a permanent injunction, the
construction of a reservoir on the upper
sources of the stream, to accumulate water
when it is plentiful for use in times of scarci-
ty, and thus neutralize the diminution caused

by the manufacture of salt. That court may
also require, on the like condition, greater
care in preventing the escape of salt water
and salt substances into the stream, as the
defendant attempted to do during the trial,
and thus prevent or minimize the pollution.
The judgment of the courts below should be
reversed, and a new trial granted, with costs
to abide the event.

JJ., concur.

Judgment reversed, etc.

GOODRICH et al. v. STANGLAND et al.
(Supreme Court of Indiana. Oct. 3, 1900.)
1. Though Sup. Ct. Rule 6 (55 N. E. iv.) re-
quires the names of the parties to be given in
full in an assignment of errors, a designation of
parties by initials of their Christian names wiill
not render an assignment defective, where such
designation conforms to the designation in the
pleadings filed by the parties named.
2. Where one of several remonstrants took
an appeal in term time, and filed a bond condi-
tioned to prosecute the appeal, and pay all
costs accruing against "him," the bond did not
inure to the benefit of the others; and, as a
bond is essential to perfect a term-time ap-
peal, the appeal taken was not a term appeal
as to them. and therefore not within Acts
1895, p. 179 (Burns' Supp. Rev. St. 1897,
6470), providing that all parties against whom
judgment is rendered need not be joined in term
3. Though the appearance of appellees oper-
ated as a waiver of notice of appeal, it did
not cure the omission of names of parties who
should have been joined as appellants.
4. Burns' Rev. St. 1894, 5654. which pre-
scribes a form for a notice of the filing of a pe-
tition for a drain, and requiring it to contain a
description of the land, is from Acts 1881,
while Burns' Rev. St. 1894, 5624, giving the
requisites of such notice, and not requiring a
description of the land, is from the later act
of April 6, 1885; hence such notice is valid, if
conforming to section 5624, and is without any
5. Where a petition for a drain for which re-
monstrant, as a benefited landowner, was to be
assessed, did not ask for the drainage of lakes,
the fact that the proposed route ran through
several small natural water basins or courses
did not invalidate the proceedings as being for
the drainage of lakes.
6. Where a petition for a drain asked for
certain branches and such other lateral and
branch drains as should be deemed necessary.
the proceedings were not invalidated because the
commissioners' report embraced branch drains
not expressly petitioned for.
7. The overruling of an application for a
change of judge, made in an action in which'
judgment was rendered by default, may be con-
sidered on appeal without having been pre-
sented, to the trial court by motion for new
trial, as such motion does not lie on judgment
by default.
8. Where a motion to strike out a remon-
strance to a proposed drain had been heard and
submitted, the remonstrant thereby consented
to the judge, and could not subsequently file
motion for a change of judge.