delivered the opinion of the court:
Counsel for appellant argue that the allegations of complainants’ bill are of such a general nature that the aid of equity cannot be invoked in behalf of appellees; that the injury complained of is simply a pecuniary one, susceptible of being compensated by a judgment for damages, and hence the allegations are not such as will sustain a bill in equity seeking an injunction. The whole contention seems to be that the case presented is not one for equitable interference.
The master to whom the case was referred, found that upon the tract of land upon which said city is located a stream of water has its source, which, in its natural state, flows down and across the parcels described as belonging to appellees, the water of which stream, in its natural state, is pure and wholesome for drinking purposes for stock; that on said premises is a spring of pure water, which is discharged into said stream, affording a good and sufficient supply of pure water for stock; that the city, without the consent of the appellees, has constructed certain drains and sewers, which discharge upon the lands of appellees certain noxious, filthy and polluted waters, in which are carried great quantities of poisonous acid and oily and greasy substances, defiling said stream and rendering it unfit and unsuitable for the uses and purposes aforesaid, and emitting noxious, injurious and offensive odors, so as to create a nuisance which is offensive to the neighborhood, making an irreparable injury to the waters, and that the city threatens to continue indefinitely to discharge said polluted waters upon the lands described; that on the lands in question was a spring of pure water, which was becoming unfit to use for stock purposes by being defiled by the water flowing over said lands from said sewer, the water from the sewer flowing into or backing up into the spring; that the water from the said sewer injuriously affected cattle and hogs; that urinals in the yards of the Western Tube Company were connected with the sewer and that certain man-holes or street inlets took into the sew;er the refuse water of the street. Samples of the water flowing from the sewer in question were admitted in evidence, and the evidence unmistakably showed that it was of a composition positively injurious to persons or animals. Exceptions to the master’s report were overruled by the chancellor, who found the equities of the case were with the complainants and that they were entitled to the relief asked.
Prom a review of the evidence we are of the opinion that the master was amply justified in reaching the conclusions embodied in his report, and the chancellor did not err in overruling the exceptions to said report. The granting or refusal to grant an injunction rests in the sound discretion of the trial court, and its action cannot be disturbed in the absence of clear proof of an abuse of such discretion. (Platt v. Waterbury,
Counsel for appellant argue that the judgment at law ■for damages which was set up in the answer should have been held to be a bar to the relief sought in the present bill; that the damage complained of was not of a character to furnish ground for equitable relief by injunction; that it is capable of compensation by a judgment at law; that the injury complained of is of a permanent nature, and that future, as well as present or past, damages are recoverable in a single action, and in such case but one •recovery can be had. This contention, we think, is not consonant with better reason nor in harmony with the adjudicated cases. In the case of Barton v. Union Cattle Co.
A case that has been often cited and adhered to as presenting a clear and correct exposition of the principles of law applicable in cases analogous to the present, is that of Holsman v. Boiling Spring Bleaching Co. 14 N. J. Eq. 335, in which it is said: “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 the quantity of the water. The court of chancery has a concurrent jurisdiction with courts of law, by injunction, equally clear and well established in cases of private, nuisances, and it is a familiar exercise of the power of the court to prevent, by injunction, injuries to water-courses by obstruction or diversion. * * * A disturbance or deprivation of that right [to the use and enjoyment of the water in its natural state] is an irreparable injury, for which an injunction will issue. * * * 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. * * * It is urged that the right of the complainant is not clear, and .must therefore be fully established at law before an injunction will issue. Where the complainant seeks protection in the enjoyment of a natural water-course on 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 will not entitle him to an issue before the allowance of ah injunction.”
In the case of Butler v. Village of White Plains, 69 N. Y. Sup. 193, the defendant village operated a sewerage disposal plant, the effluent from which was deposited in a river on which the plaintiff was a lower riparian owner. Such discharge at times produced a foul and offensive odor over the plaintiff’s lands and polluted the waters of the stream. It was'held, that as plaintiff had a right to the reasonable use of the river in its natural flow and purity, the injury was a continuing nuisance, and hence, though plaintiff might have an adequate remedy at law for-the' damages already suffered,’ equity would restrain the same to prevent a multiplicity of suits.
In the case of Merrifield v. Lombard,
The contention of appellant’s counsel that the judgment at law heretofore alluded to is a bar to the present action we regard as unsound. From the cases cited in this opinion it is clear that;the courts have regarded.acts such as are complained of in the case at bar, proper subjects of equity jurisdiction, and such a nuisance as is here sought to be enjoined as continuous and constantly recurring, rather than permanent. In the case of Butler v. Village of White Plains, supra, the right of a lower riparian owner to enjoy, unpolluted from the sewage of the village, the waters of a stream was in question, and it was held that such owner had a right .to.the reasonable use of the river in its natural flow and purity, and the injury was a continuing nuisance., and hence, though he might have an adequate remedy at law for damages already sustained, equity would interfere to prevent a multiplicity of suits. In Merrifleld v. Lombard, supra, it was held that the corruption of a stream which prevented its use for any reasonable and proper purpose to which running wTater is usually applied, was a nuisance of a continuous and constantly recurring nature and for which wrong an injunction would lie. In cases of this character courts of law and equity have concurrent jurisdiction. (McCallum v. Germantown Water Co. 54 Pa; St. 40; Gardner v. Newberg,
Nor is the contention in accordance with what has generally been understood to be the rule applicable to such cases. In the earlier cases and text books relative to nuisances and equitable relief relating to them, the rule was commonly announced that before relief by injunction would be granted the person injured should establish the fact of the nuisance by an action at law. This rule, however, has been departed from in this State, and we have held that where the facts establishing the nuisance were clear, and there was no substantial doubt as to the right of relief, against an existing nuisance, equity would assume jurisdiction in the first instance, (Village of Dwight v. Hayes,
The case at bar, however, we think is even stronger for appellees than is necessary to bring it within the principle as above laid down. The principle of law which contemplates that damages sustained for a permanent injury to land shall be recovered in one action is applicable only to those cases where the party or agent committing the injury acts within the authority of the law. In this case, when the sewage of the defendant city, or any part thereof, though combined with sewage or deleterious waters from other sources, was cast upon the lands of appellees or mingled with the waters of a stream running over the same, so that a nuisance was created as to appellees and they were injured thereby, such act of the defendant was unlawful and it could not be -sanctified by time. Nor could it be said that such a nuisance was a permanent one, for it would be the duty of its authors to have it abated. Proprietors of Mills v. Water Supply Co. supra; Irrigation Co. v. Canal Co.
If, however, it be regarded that the eight-inch tile across appellees’ land was originally provided as a satisfactory arrangement for the carrying off of this objectionable sewage, but, as a matter of fact, it subsequently became inadequate for such purpose, even then appellees would not be precluded from obtaining relief, upon proof of such inadequacy and damage resulting therefrom, and a prior judgment for damages would be no bar to the present action. In such case, appellees would not be bound to assume that the provision made to protect them from damage, if found to be inadequate, would be a permanent one, but it would be the duty of the proprietors of the land above them, who sought to cast this burden upon appellees’ land, to make whatever provision was necessary to save them free from injury, and the moment that this was not done a right of action would be created in appellees. Chicago, Burlington and Quincy Railroad Co. v Schaffer,
There is some conflict in the evidence as to the original position assumed by appellees in regard to this tile, but even if there were none, and the version of their relation as given by appellant be taken as correct, even then there could be no estoppel, as a mere parol consent for the pollution of a stream or the creation of a nuisance vests no right not capable of revocation at any time. (Village of Dwight v. Hayes,
The evidence discloses that Emerit Baker was vice-president of the Western Tube Company, and that appellees made complaint of the character of the sewage coming from the plant of that company and cast upon appellees’ lands; that portions of the city and the lands of many holders lay between the lands of the tube works and appellees’ lands, and the sewage from the tube works went through a line of natural drainage until it reached appellees’lands. Baker recognized the justness of appellees’ complaint and undertook to remedy the difficulty, and proposed to appellees to lay, and did lay, across appellees’ lands, outside the course of natural drainage, or rather outside the ditch and natural way but along the course of the natural fall, thirty-nine hundred feet of eight-inch sewer pipe, which was paid for by the Western Tube Company. This pipe was carried back to a, sort of man-hole or catch-basin, where the drainage would be gathered and conducted thence through the sewer pipe. This man-hole or catch-basin was about two rods away from the branch or natural waterway. After this sewer was thus constructed the residents along the line of natural drainage between the Western Tube Company’s works and appellees’ lands began to drain their lands into the drains, and the citizens, together with the city, (the city and the land and lot owners paying the expense therfeof,) practically constructed a system of sewerage, consisting principally of regular sewer pipe, most of which was twenty-four inch tile, and connected the same with the said man-hole near appellees’ premises, so that the eight-inch tile through appellees’ lands' was required not only to take care of the sewerage coming from the Western Tube Company, but to take care of all the sewerage, including the rainfall, the house and other sewage, of that portion of the city lying between the tube company’s works and appellees’ lands, in consequence of which the tile laid by the tube company on appellees’ lands became filled and stopped úp, so that it would not carry the sewerage or any considerable portion of it. This man-hole or catch-basin, where the sewerage was accumulated and to be discharged into the sewer pipe across appellees’ lands, was also situated in the line of the natural depression, and so near the ravine and spring branch forming the natural drainage that when the sewer pipe would not receive and carry the sewage across appellees’ lands it sought the course of natural drainage, and was drained down the ravine and spring branch, as complained of in the bill. There is no pretense that Baker was acting for the city, or for anybody except the Western Tube Company, and an;?- agreement or arrangement that he might have made with the appellees would not authorize appellant to construct a public ..system of sewerage that should carry obnoxious matter and the general sewerage of the city into this same drain.
Section 2 of the statute that is here invoked, which is paragraph 229 of chapter 42, (Starr & Cur. Stat. 1896, p. 1583,) provides: “It shall not be lawful for either of the parties interested in said drain to authorize any other person or persons to connect therewith without the consent of all the parties interested in said drain, and all drains connecting therewith without such permission shall be unlawful, and any person interested, may by bill in chancery, compel the person or persons'constructing such unlawful drain to fill the same up and in addition may have a right of action for all damages occasioned thereby.” Appellant does not claim to have had appellees’ consent to thus connect with the line of sewer pipe laid across appellees’ land by the Western Tube Company, and while the evidence tends to show the tube company co-operated with the city and the property owners between the tube company’s works and the land of appellees in the construction of the drains that were afterwards carried to the man-hole above mentioned, this clearly was contrary to section 2, supra, of the act relied on, as such connection could not be made “without the consent of all parties interested in said drain.” When this statute is considered all together, it is very clear that it cannot in any way benefit appellant, but if it is to be given any effect at all it would be favorable to the relief claimed by appellees.
The further contention of counsel for appellant, that the objectionable sewerage came from some other source than that of appellant, is also untenable. It was found by the master that the defendant had constructed sewers which discharged the objectionable matter referred to upon the lands of appellees. We are unable to say that such finding was not warranted by the evidence. Though other sources than that of the defendant city may have been responsible for the collection of this objectionable sewage, such fact furnishes no defense to the defendant here, if it in fact contributed to the nuisance complained of and participated in the pollution of the waters that caused injury to appellees. Richmond Manf. Co. v. Atlantic, etc. Co. 10 R. I. 106; Mansfield v. Hunt, 19 Ohio C. C. 488; Attorney General v. Leeds, L. R. 5 Ch. 583; Paper Co. v. Pope, 57 N. E. Rep. 721; 28 Am. & Eng. Ency. of Law, 968; Village of Kewanee v. Ladd,
Counsel for appellant also contend that the allegations of complainants’ bill are not such as show the kind of injury to them necessary for the interposition of a court of equity by injunction. While the allegations of injury in the bill are to some extent general, we think the personal injury to appellees is made sufficiently explicit and by the evidence so clearly established that relief oug'ht not to be denied. The bill alleges that the injury complained of is such as to constitute a nuisance on the lands of complainants, rendering them unfit for the uses to which they have been placed, depreciating their value and depriving the appellees of great gains and profits; that the stream thereon is polluted by the objectionable sewage, and that noxious, injurious and offensive odors are thereby created-. The evidence unmistakably shows that the sewage complained of was such as to pollute the stream on appellees’ land, rendering the waters thereof extremely deleterious to man and beast. The books are full of cases holding that equity jurisdiction is properly invoked to afford relief to a lower riparian owner where an upper proprietor defiles or corrupts a stream to such a degree as essentially to impair its purity and prevent its use for any reasonable and proper purpose to which running wnter may be applied. It is the right of every owner of land over which a stream of water flows, to have it flow in its natural state and with its quality unaffected. The right to a stream of water is as sacred as a right to the soil over which it flows. It is a part of the freehold, of which the owner cannot be disseized except by due process of law, and the pollution of a stream constitutes the taking of property, which may not be done without compensation. Gardner v. Newberg,
In accordance with the views above expressed, the decree of the lower court is affirmed.
Decree affirmed.