Indianapolis Water Co. v. American Strawboard Co.

53 F. 970 | U.S. Circuit Court for the District of Indiana | 1893

BAKER, District Judge.

It is earnestly contended by counsel for defendant that the bill does not show such ownership of the land adjacent to the river as entitles the plaintiff to claim riparian rights in the flow of the stream. It has been well said that the rights of a riparian proprietor, so far as they relate to any natural stream, exist jure naturae, because his land has by nature the advantage of being washed by the stream; and, as the facts of nature constitute the foundation of the right, the law should recognize and follow the course of nature in every part of the same stream. The ownership of the bed of the river is not the foundation of “riparian rights” properly so called, because the word “riparian” is relative to the bank, and not to the bed, of the stream; and the connection, when it exists, of property on the 'banks with property in the bed of the stream, depends, not upon nature, but upon grant or prescription. Lyon v. Fishmongers’ Co., L. R. 1 App. Cas. 662, L. R. 10 Ch. 679. It is necessary for the existence of a riparian right that the land should be in contact with the flow of the stream. All riparian rights depend upon the ownership of land which is contiguous to and touches upon the water. Jones v. Johnston, 18 How. 150; Johnston v. Jones, 1 Black, 209; Bates v. Railroad Co., Id. 204. A mere right of way along the bank, reserved in a grant of land bounded by a river, being a mere easement, would not deprive the grantee of his rights as a riparian proprietor. The grant of a strip of land along the banks, which is contiguous to and touches the flow of the stream, carries with it the ownership of the béd of a nonnavigable river usque ad fllum. The bill shows that the plaintiff is the owner in fee of lands which, for a considerable distance, are contiguous to and touch the flow of the stream. It directly avers that it is the owner in fee of a portion of the bed of the stream, as well as of the bank. It is, in the fullest sense, a “riparian proprietor,” and entitled as such to all the rights of such proprietor in the water of White river.

A riparian proprietor upon a nonnavigable stream is entitled, in the absence of grant, license, or prescription limiting his rights, to have the stream which washes his lands flow as it is wont by nature to flow, without material diminution or alteration. “Aqua currit et debet currere ut currere solebat.” Every riparian proprietor has the right to insist that the stream shall floAV to his lands in the usual quantity and quality, and at its natural place and height. He owes the duty of permitting it to flow off his land to the lower riparian proprietor in its accustomed quantity, quality, place, and level. The proprietor has no property in the flowing water, which is not the subject of riparian ownership, but he may use it for any purpose to which it can be beneficially applied, without material injury to the rights of others. Any diversion or obstruction of the water which substantially diminishes its volume, or' the depositing of any substances in the stream which corrupt or pollute-the water to such a degree as essentially to impair its purity, and prevent its use for any reasonable and proper purpose to which running water is usually applied, is an infringement of the right of other owners of land through which the stream Hows. An action for damages may he maintained by a riparian proprietor for tlie pollution of a stream. So a perpetual injunction will he granted to restrain such pollution, especially if it is of a continuous nature, even when the plaintiff could only recover nominal damages at law, because of the inconvenience of repeated actions, and the danger of the acquisition of an adverse right to pollute it by its continuance for 20 years. So, also, a perpetual injunction will he granted to restrain the pollution of a stream where the nature of the injury is such as to render it difficult or impracticable to adequately measure the damages, and fully compensate for the wrong. Gould, 1 Waters, (2d Ed.) § 223. and cases cited in note 1; Memfield v. Lombard, 13 Allen, 16; Lyon v. McLaughlin, 32 Vt. 423; Holsman v. Spring Bleaching Co., 14 N. J. Eq. 335; High, Inj. (3d Ed.) §§ 749-795.

The contention that the hill does not charge such tortious injury as entitles the plaintiff to relief is unfounded. Tin; injury alleged is not contingent, remote, or speculative, ft is distinctly charged that the defendant daily passes through its factory 3,000,000 gallons of water, and uses 80 tons of straw, 27 tons of lime, and five gallons of muriatic acid, all of which .are worked upon hv the water passing through the factory which is discharged into the river; that 107 tons of solid matter are thrown into said water each day, and only about 40 tons are taken out, and the remaining 67 tons daily pass into the river; that the water passing through the factory, as it reaches the river, is of a dirty brown in color, and glutinous in consistency, and lias the effect, and has had ever since the works were skirted, to render the wafer of the stream at all points below on White liver from Noblosvillo, to a point somewhere below the city of Indianapolis, which was, before the starting of said works, clear and pure for drinking and other like purposes, brown in color, offensive to the smell, and impure and unwholesome'for drinking and other like purposes; that prior to the starting of the works the river was well stocked with fish, and was acceptable for drinking to domestic, animals, hut since the starting of said works, by reason of the flowing of the water and other matter therefrom into the river, the fish between said points have died, or abandoned that part of the river, and cattle, after tasting it, refuse to drink it, or, if they do drink it, it renders (heir mouths sore; that the water in the canal is now also amber brown in color, stained with said offal from said mill, and from being of the same degree of purity of the water formerly in the river it has, by reason of said offal, been rendered impure. These facts clearly show actionable injury to plaintiffs riparian rights. The hill also shows that the plaintiff has been and is suffering, and will continue to suffer, material pecuniary injury from this infringement of its rights. The extent of its pecuniary injury from the nature of it, and from the extent, and character of the uses to which plaintiff devotes the water, is incapable of any certain ad-measurement; but if the plaintiff liad neglected to use or appropriate the water, or had as yet suffered but small pecuniary loss, it would not present any such impediment as would warrant a court of equity in refusing relief. Nor. could the fact that the defendant would be exposed to great difficulty and expense to restore the water to its accustomed purity present such objections as would justify the court in denying equitable relief. High, Inj. (3d Ed.) 795, and cases there cited. Courts will not interpose by injunction to prevent a mere eventual or contingent nuisance, nor will they interpose when the injury is remote or contingent, and rests merely in speculation. A very strong case must be made by the bill to justify the court in granting injunctive relief; and, if there is reasonable doubt of the effect of the alleged nuisance on the construction of the facts alleged in the bill, there will be no interference until the matter is tested by actual experience. These principles, however, do not rule the facts exhibited in the bill. The bill shows the wrongful corruption of pure and wholesome water, so that it has become offensive to sight and smell, and deleterious in use for ordinary domestic purposes. It clearly discloses an actionable wrong.

■ It is further claimed by the defendant that the court cannot take jurisdiction of this bill because the plaintiff has a plain adequate and complete remedy at law for the injuries complained of. Section 723, Rev. St. U. S. 1878, provides that “suits in equity shall not be sustained in either of the courts of the United States in any case where a plain, adequate, and complete remedy may be had at law.”

It is argued that, if this suit was pending in a state court in Indiana, there would be no doubt that a court of equity would not have jurisdiction to interfere by injunction, because the legislature of the state has provided a plain, adequate, and complete remedy at law, and it is asserted that, inasmuch as this suit would be triable at law in a state court, it must be tried at law in this court. It is undoubtedly true, if the customary or statute law of a state has created a new right, the federal courts will enforce the same at law or in equity, if it falls within the remedies authorized by either branch of their jurisdiction. Gaines v. Fuentes, 92 U. S. 10; Ellis v. Davis, 109 U. S. 485, 3 Sup. Ct. Rep. 327; Scott v. Neely, 140 U. S. 106, 11 Sup. Ct. Rep. 712. Such new rights, however, will be enforced a,t law or in equity, as the nature of those rights may require. The state cannot bind the federal courts by limiting the remedy so as to impair the separation established by the constitution between actions for legal demands and suits for equitable relief. Scott v. Neely, supra.

But, independently of this consideration, the statute of the state does not affect the question of jurisdiction of such a cause of action as is exhibited in the bill, whether brought in a court of the state or in this court. The sections of the statute of the state cited and relied on are 289, 290, and 291. These sections are as follows:

“289. Whatever is injurious to the health, or indecent, or offensive to the senses, or an obstruction to the free use of property, so as essentially to interfere with the comfortable enjoyment of life or property, is a nuisance, and the subject of an action. 290. Such action may be brought by any person whose property is injuriously affected, or whose personal enjoyment is lessenod by the nuisance. 291. Where a proper case is made, the nuisance may be enjoined or abated, and damages recovered therefor.”

These sections create no new rights, nor do they prescribe any new remedy. The first two sections simply codify the law of nuisance as immemorially adjudged by the courts and stated in text-books. The remedy by injunction or abatement was known and practiced by the courts of this state long before the Code of 1852 was enacted. It simply recognizes the jurisdiction of courts of equity to enjoin a nuisance, or, after a judgment at law,"to order it to he abated. While all legal and equitable rights were by the Code required to he enforced by a “civil action,” and wliile such action, whatever its nature, was triable by jury as an action at law, such practice never obtained in this court, and since 1881 it has not obtained in the courts of this state. Rev. St. Ind. 1881, § 409. Since the enactment of the last-cited statute, issues of law and of fact in suits of equitable cognizance have been triable by the court without the aid of a jury.

The question whether a suit shall he tried by the court sitting as a chancellor is now to be determined, both in the courts of the state and in this court, by the inquiry, has the plaintiff a plain, adequate, and complete remedy at law for the redress of the griev-. anees alleged in his complaint ? Suits in equity can only he brought when the court can give more complete and effectual relief in kind or degree on the equity side than on the common-law side. Where the right of a riparian proprietor to tlie use and enjoyment of the flow' of a stream of pure and wholesome water, free from corruption and pollution, has been actually invaded, and such invasion is necessarily to he continuing, and to operate prospectively and indefinitely, and the extent of the injurious consequences is contingent and of doubtful pecuniary estimation, the writ of injunction is not only permissible, but it affords the only adequate and complete remedy. High, Inj., supra; Lyon v. McLaughlin, 32 Vt. 423; Merrifield v. Lombard, 13 Allen, 16. The hill shows a clear invasion of the plaintiff’s rights, and that the invasion is necessarily to be continuing, and to operate prospectively and indefinitely, and that the extent of the injurious consequences is contingent, and impossible of accurate pecuniary estimation. An action at law would afford no plain, adequate, and complete remedy for the injuries complained of. The demurrer must be overruled, and it is so ordered.