Gladfelter v. Walker, 40 Md. 1

40 Md. 1 | Md. | 1874

Robinson, J.,

delivered the opinion of the Court.

This suit was brought to recover damages of the appellant, defendant below, for entering and breaking the plaintiff’s close, and for fouling a stream of water, known as “Tlie Little .Falls of the Gunpowder,” which flowed through the farm of the plaintiff.

The declaration contains six counts: The last three counts allege substantially, that the stream had long flowed through the plaintiff’s farm in a pure state, but that some months prior to the institution of this suit, the defendant had fouled, and was daily continuing to foul the same by throwing into it certain poisonous substances.

The appellant filed six pleas, and the appellee demurred to all except the first and third, upon which he joined issue.

The second plea states that at and long before the time of the committing of the grievances alleged, there was, and still is, an ancient paper mill erected upon said stream, and near the appellee’s land, to which mill was, and still is, annexed the right to use the water of the stream for all purposes belonging to the manufacturing of paper, and that said mill was from its erection, used in such manufacture with the knowledge and acquiescence of the plaintiff; that the defendant purchased the mill, and the right appurtenant thereto, to use the water of the stream for all the purposes of paper manufacture, and that down to the time of such purchase, no objection was made by the plaintiff—that the defendant made use of the water reasonably and properly, and according to the customary methods of manufacturing paper, using only such chemicals and other substances, and employing only such methods and processes as are fit to be used about the manufacture of paper, and conducted the business of manufacturing in all respects in a reasonable and proper manner.

This plea is no answer to either of the counts in the declaration. As owner of the land through which the stream flowed, the plaintiff was entitled to the use of the water in its natural state, and if the defendant polluted the same, so as to render it unfit for use, he was liable in an action for damages, unless he had acquired an adverse right against the plaintiff by grant or prescription. Murgatroyd vs. Robinson, 7 Ellis & Bl.; 391; Dickinson vs. Grand Junction Canal Co., 7 Exch., 282; Wood vs. Waud, 3 Exch., 748; Embrey vs. Owen, 6 Exch., 353 ; Gardner vs. Trustees of Village of Newburgh, 2 Johns. Ch., 162.

The plea avers that there was a right appurtenant to the mill, to use the water in the manufacture of paper, and that the plaintiff had acquiesced in the exercise of this right up to the time of the purchase of the mill by the defendant, but it does not aver a user, and acquiescence by the plaintiff, for a period of hoenty years. Where a prescriptive right to foul a stream is relied on, the plea should aver a continued and uninterrupted user for not less than twenty years.

The fourth plea is also bad. The fact that other mill owners had acquired such a prescriptive right, was no bar to the plaintiff’s right to recover as against the defendant for fouling the stream.

The fifth plea is also defective. Every plea ought either to deny, or confess and avoid the facts stated in the declaration, and the averments in it ought to be direct and certain, and not ambiguous. The declaration expressly charges the defendant with fouling the stream, by throwing into it certain poisonous substances, and a plea of a prescriptive right to use the water for all reasonable purposes in the manufacture of paper, and that the defendant had so used it and had not used it in any other manner, does not expressly deny, nor does it directly confess and avoid the facts stated in the declaration. It may be that by the methods and processes adopted for the manufacture of paper, at the time when the prescriptive right thus relied on was acquired, the reasonable use of the stream for all the purposes of such manufacture did not foul the stream; whereas by another and different process adopted by the defendant, and such as is now usual and customary in the manufacture of paper, the reasonable use of the water for the purposes of such manufacture may necessarily foul the water. If the defendant intended to rely upon a prescriptive right to foul the stream, such a right ought to have been pleaded in direct and unambiguous terms, and in the absence of such a plea, the averment of a right to use it for all reasonable purposes in the manufacture of paper, ought to be construed as a right to use the water in a manner not injurious to other proprietors.

The demurrer to the sixth plea was also properly sustained. If it be conceded that other mill owners had acquired the right to foul the stream, such a right, as we have before said, was no bar to this action; and the averment that the defendant conducted his business in the usual manner and with reasonable care, is no answer to a declaration which charges him with fouling a stream to the use of which the plaintiff was entitled.

The demurrer it is true, reaches back to the first fault in pleading, but we have not been able after a careful examination, to find any such delect in the plaintiff’s declaration, as would have justified the Court in overruling the demurrer interposed by him.

The first count charges, that the defendant broke and entered certain land of the plaintiff, situate near Parkton, Baltimore County. This we think is a sufficient averment that the locus in quo is in Baltimore County. For these reasons, we are of opinion that the demurrer was properly sustained.

At the trial, the plaintiff proved, that he was the owner of a farm of about five hundred acres, through which the stream flows, and that he has resided on the farm for seventy years; that there were dwellings, a barn and a grist mill on said farm, that prior to December 1869, when the defendant and Dushane his partner, commenced the use of the mill, the water of the stream had been pure, clear and limpid, and was used for household purposes, and for watering the cattle and stock, but that from and after the date mentioned, the character of the stream had been changed, and the water flowed, and still flows daily for several hours of a color nearly black, and is covered with foam from hank to hank; that it was unfit for domestic use, and that the plaintiff was obliged to make other arrangements for watering his stockand that such discoloration in, and foam on the water, proceeded from substances thrown into the water at the defendant’s mill.

The plaintiff also proved by the witness Ball, that he<> owns a farm on the stream about two miles below the plaintiff’s; that ever since the defendant and Dushane commenced to work the mill, the water of the stream is black for six or seven hours once, and sometimes twice a day, and that the stones at the bottom are discolored. The witness further stated, that there are several other paper mills on the stream above defendant’s mill, but none between defendant’s mill and the property of the witness, and that the water of the stream was never discolored before it was done by the defendant.

The plaintiff then proposed to ask the witness, whether . he had an opportunity to ascertain the effect produced on cattle, by the use of the water, and if so, to describe it. To this question the defendant objected, but the Court overruled the objection, and the defendant excepted.

The witness answered that after the water became so impure, he lost by death two horses and a number of hogs, and that on opening them, he found the bladder nearly destroyed, and he found them filled with polluted water, or what looked like it.

This evidence was clearly admissible. One of the questions before the jury, was whether the defendant had so polluted the stream, as to render the water unfit for use. It might not necessarily follow, that because the water was discolored two miles below the plaintiff’s farm, that such discoloration was caused by the defendant, nor that the horses and hogs died from the effects of the water. Yet these were facts in consideration with other facts, to go to the jury, from which to determine whether the stream had been rendered unfit for use by the acts of the defendant.

The law applicable to the case, was fairly submitted to the jury. If the water of the stream was polluted by the defendant’s throwing"into it, the drainings or refuse matter from his mill, the plaintiff was entitled to recover, unless the defendant had a prescriptive right so to foul the water.

The fact that other mill owners may have acquired such a prescriptive right, was no bar to the action. The plaintiff sues for an invasion of his rights by the defendant, and if such rights have been invaded, an action will lie, although he may not have suffered any actual damage.

Otherwise the defendant, by continuing the practice for twenty years, might establish as against the plaintiff, the right to discharge into the stream the foul water from his mill. Wood vs. Waud, 3 Exch., 772; Embrey vs. Owen, 6 Exch., 353; Johns vs. Stevens, 3 Vt., 308; Thomas vs. Brackney, 17 Barb., 654; Ripka vs. Sergeant, 7 Watts & Ser., 9.

The defendant’s fourth prayer was also properly refused. The plaintiff was not only entitled to the use of the stream, but to the water in its natural state, and the defendant had no* right to discolor the same, by throAving into it the refuse matter of his mill, although such discoloration may not have been injurious to animal life. The question was not whether the acts of the defendant had rendered the water destructive to animal life, but whether the plaintiff was entitled to the use of it in its natural state, and if so, whether the defendant had interfered with that use. “Aqua currit et debet currere, ut currere solebat.”

The sixth prayer was properly refused for reasons heretofore assigned.

(Decided 3rd March, 1874.)

The rule in regard to damages was correctly laid down. The plaintiff was entitled to recover such damages as naturally or necessarily resulted from the wrongful acts of the defendant, and the loss of an opportunity to rent his grist mill—the diminution in the rental value of the farm, and the inconvenience lie may have been put to in the use of the same, resulting directly from the conduct of the defendant, were proper elements to be considered by the jury in estimating the damages. The verdict in this case being for one cent, it will hardly be contended that the damages were excessive.

The ground upon which the motion in arrest of judgment was based, a misjoinder of counts, even conceding that such a motion could be made in this case, is disposed of by Williams vs. Bramble, 2 Md., 313.

There a count in trover was joined with a count in trespass vi et armis de bonis asportatis, and the Court said, there could be no misjoinder, where the same plea could be pleaded and the same judgment given on all the couuts. So here there is no misjoinder, because the first count for entering and breaking the plaintiff’s close, was joined with counts for polluting the stream, to the use of which he was entitled.

For these reasons the judgment below will be affirmed.

Judgment affirmed.