69 Miss. 299 | Miss. | 1891
delivered the opinion of the court.
The appellees brought this suit to recover from the appellant damages for polluting the waters of a small stream which runs across their lands. A map showing the location of the stream, aud its several branches before it reaches the land of the appellees, seems to have been introduced in evidence in the court below, and several witnesses were examined in reference thereto; but this map is not in the record, and, if it were, we would be unable to apply the testimony of the witnesses to it, because of the indefinite manner in which the locations are spoken of. It is manifest that this court can form no opinion of the meaning of a witness, when the bill of exceptions states only that, “the witness explained the map to the jury,” or testified that the stream entered the land
The evidence in this case discloses that the plaintiffs are the owners of a tract of land through which a small stream of clear and pure water originally ran; that on one of the branches of this stream, above them, the defendant company erected a cotton and woolen mill more than twenty years ago, which mill is located at or near some springs from which this branch of the stream takes its origin. The defendant dug a pond about the springs, and dammed up the water they supplied, and with a large pump forced the water from the pond into its dye-house and through the'closets in its mills. The water, having been used in flushing the closets and in dying the cloths manufactured and washing the wool used by the company, is returned to the stream, below the pond, and from thence flows into the stream on the plaintiffs’ land. This use of the water commenced more than twenty years ago, and has been continuous from that time to the present.
The plaintiffs, however, contended and introduced evidence tending to prove, that until less than five years before the institution of this suit the stream below the pond was small and feeble, and its bed crooked and filled with large holes, in which
It was also proved, both by witnesses for the plaintiff and defendant, that, within ten years before the suit, the defendant company had considerably increased its capacity and the number of its employes, by whom the closets were used; and that, for the purpose of securing an increased supply of water, the defendant had pumped and piped water from Ford’s creek, a stream over a mile away, the water from which would not naturally come through the plaintiff’s land; that this water from Ford’s creek was used for the same purposes as that taken from the pond, and, after such use, was delivered through the ditch cut by defendant in the stream on plaintiffs’ land.
The defendant’s evidence tended to show that the water of the stream was less polluted than the plaintiffs claimed it
This statement of the material evidence fairly presents the facts upon which the plaintiffs contend that a right of recovery is shown, while the defendant claims that none should have been permitted.
The testimony of the plaintiffs and defendant, while in some respects conflicting, presents in the main substantially the same condition of affairs.
The defenses relied on by the defendant company are, first, that a right to pollute the stream has been shown to exist by prescription; second, that the use to which the water was put by it was a reasonable one, in view of the character of its business, and that the right of an individual to have pure water must yield to the policy of the state and the public of em couragiug great manufacturing establishments, which cannot exist if forbidden to befoul the water which it necessarily uses in its works, or to deliver it, when thus necessarily polluted, along the natural water-courses.
The plaintiffs, on the trial, conceded the right of the defendant to pollute the waters to the' extent to which that right had been exercised until within five years of the commencement of their action, but contended that the right now claimed was materially different in character and degree from that which the defendant could exercise under its prescriptive claim.
Upon this point we think the law and the facts are with the plaintiffs — at least, that upon proper instructions as to the law, the jury found a verdict for the plaintiffs, which is abundantly supported by the evidence. Crossly v. Lightowler, L. R., 2 Ch. App. Cas., 478; McCallum v. Germantown Water
In support of the proposition that the plaintiffs cannot recover in this'suit because the water was polluted by a manufacturing company, and that the right of the plaintiffs must therefore be determined by a different rule than would be applied if the injury had been done by one not a manufacturer, the defendant relies upon the case of The Penn. Coal Co. v. Sanderson, 113 Pa. St., 126.
That case had been before the supreme court of Pennsylvania on three previous writs of error, in each of which it had been determined that the plaintiff showed a right of recovery. 5 Norris, 401; 13 Norris, 302; 6 Outerbridge, 370.
On the fourth writ of error, and upon substantially the same facts, a contrary conclusion was reached. But the decision on the last writ of error is not that a manufacturing company, more than any other person, may pollute the waters of a stream without liability to others having a right to the use of the water flowing therein. On the contrary, the opinion is based upon the express declaration of the court that the character of the water had not been changed. The action was by Sanderson against the coal company for polluting the waters of Meadow Brook by discharging therein the waters from its mine. The court said: “ It will be observed that the defendants have done nothing to change the character of
The distinction between that case and this is apparent. In that, the mining company, in the ordinary use of its property, opened up a flood of water which, in its natural state, flowed into the brook, and, being naturally injurious, polluted the brook.
In this case, the defendant company, using water in which it had a limited right, and to which the plaintiffs, after a reasonable use thereof by the defendant, had an equal fight, by artificial means changed the very nature and character of the water, and, instead of permitting it to flow to the plaintiffs in beneficial condition, poured it upon them, according to their witnesses, poisoned and putrescent.
For this, a right of recovery manifestly existed, unless the defendant had acquired the right by prescription so to do. The verdict of the jury settles that-claim against it.
The plaintiffs, over the objection of the defendant, was permitted to prove that the water from the stream had siped into a spring, near it's border, rendering it unfit for use; and that, when it overflowed its banks, the adjacent land was rendered unfit for cultivation, and the crop thereon destroyed ; that, on one occasion, a hog that had been in the stream was killed for meat, and its flesh found unfit for use, and probably other circumstances of like character. The objection taken to the testimony was general, but we are now informed that the ground of objection is that no damages were claimed in the declaration for the injuries thus proved.
We do not think this testimony was introduced by the plaintiffs for the purposes supposed by the defendant. No
The court should not have permitted the plaintiffs to prove the difference in the value of their farm with a clear stream on it and with that polluted as it was. The injury is not of a permanent character, and will not, in the course of nature, continue after its cause shall be removed. It must be assumed that the defendant will cease to infringe upon the rights of the plaintiffs, and, if ityloes not, recovery must be had in successive suits. The error in the admission of this evidence would cause a reversal of the judgment, but for the fact that by the tenth instruction given for the defendant the jury was instructed not to find, in any event, the difference in the value of the place with an unpolluted and a polluted stream on it, and the further fact that the meager verdict rendered was evidently reached by disregarding the incompetent evidence.
The judgment is therefore affirmed.