ural and other domestic pursuits, as they are reasonable.192 Higher riparian owners cannot lawfully combine and by construction of artificial conduits collect foul matter and pour it in mass into a stream.193 One may drain his lands and run sewers into a watercourse, but he cannot mix with the drainage "noxious substances in such quantities that the river cannot dilute them nor safely carry them off without injury to the property of others." 194

Again, any occupation which casts poisonous or other substances injurious to health into the water is wrongful under this rule. 195 And so is any employ

....

192 "The right of a man to cultivate his own fields and to pasture his cattle on his own lands is of an original and primary character. . . . . The washings of a cultivated field might, and probably would, carry soil and manure into streams of water, and make them muddy and impure. And so the habits of cattle, according to their natural instincts, would lead them to stand in the water and befoul the stream. But nevertheless the owner of the land must not lose the beneficial use of it": Helfrich v. Catousville Water Co., 74 Md. 269, 28 Am. St. Rep. 245, 22 Atl. 72. “Cu!tivating and fertilizing the lands bordering on a stream, and in which are its sources, their occupation by farmhouses and other erections, will unavoidably cause impurities to be carried into the stream." Merrifield v. Worcester, 110 Mass. 219, 14 Am. Rep. 592. See Barnard v. Sherley, 135 Ind. 547, 41 Am. St. Rep. 455, 34 N. E. 600, 35 N. E. 117.

193 Grey v. Mayor etc. of Paterson, 60 N. J. Eq. 385, 83 Am. St. Rep. 642, 45 Atl. 994.

194 Platt v. Waterbury, 72 Conn. 531, 77 Am. St. Rep. 335, 45 Atl. 154. See, also, Barrett v. Mt. Greenwood Cemetery Assn., 159 Il!. 385, 50 Am. St. Rep. 168, 42 N. E. 891; Village of Wright v. Hayes, 150 Ill. 273, 41 Am. St. Rep. 367, 37 N. E. 218; Winchell v. Waukesha, 110 Wis. 101, 84 Am. St. Rep. 902, 85 N. W. 668; Nolan v. New Britain, 69 Conn. 668, 38 Atl. 703; Holzman v. Boiling Springs etc. Co, 14 N. J. Eq. 335. Contra, Valparaiso v. Hagen, 153 Ind. 337, 74 Am. St. Rep. 305, 54 N. E. 1062. See monographic notes, 84 Am. St. Rep. 908-926, discussing the rights of municipalities to pollute watercourses.

195 Mississippi Mills Co. v. Smith, 69 Miss. 299, 30 Am. St. Rep. 546, 11 South, 26; People v. Elk River etc. Co., 107 Cal. 214, 48 Am. St. Rep. 121, 40 Pac. 486; Barton v. Union Cattle Co., 28 Neb. 350, 26 Am. St. Rep. 340, 44 N. W. 454; Ferguson v. Firmenich, 77 lowa,

196

ment of the water or premises which causes debris or solid substances to be carried down upon lower lands to such an extent as to seriously interfere with their proper use. But in this connection it has been wisely remarked that "the exigencies of the great industrial interests must be kept in view; the property of large and useful interests should not be hampered or hindered for frivolous or trifling causes. For slight inconveniences or occasional annoyances they ought not to be held responsible." 197

§ 685. Pollution of Streams by Municipalities Maintaining Sewerage System.-The question of whether municipal corporations have any greater right to use streams of water for discharging sewers, gives rise to serious conflict of the rights of people situated in different localities. The welfare of the people located within the municipality demands a system of sewerage because it is conducive to the health of the community, and yet it may result in injury to land owners just outside the city. Consequently this power is conferred on the corporation, but it is said that legislative authority, to install a sewer system carries no implication of authority to create or maintain a nui576, 24 Am. St. Rep. 319, 42 N. W. 448; People v. Gold Run, 66 Cal. 138, 56 Am. Rep. 80. See People v. Truckee Lumber Co., 116 Cal. 397, 58 Am. St. Rep. 183, 48 Pac. 374; Owens v. Lancaster City, 193 Pa. St. 436, 44 Atl. 559.

196 Lentz v. Carnegie Bros, & Co., 145 Pa. St. 612, 27 Am. St. Rep. 717, 23 Atl. 219; Mississippi Mills Co. v. Smith, 69 Miss. 299, 11 South. 26, 30 Am. St. Rep. 547, and monographic note, pp. 551557; Tennessee Coal etc. R. R. v. Hamilton, 100 Ala. 252, 46 Am. St. Rep. 48, 14 South. 167; Elder v. Lykens Valley Coal Co., 157 Pa. St. 490, 37 Am. St. Rep. 742, 27 Atl. 545; Brayton v. City of Fall River, 113 Mass. 218, 18 Am. Rep. 470; Gerrish v. Brown, 51 N. E. 256, 81 Am. Dec. 569; Columbus etc. Iron Co. v. Tucker, 48 Ohio St. 41, 29 Am. St. Rep. 528, 26 N. E. 630; Elder v. Lykens Valley Coal Co., 157 Pa. St. 490, 37 Am. St. Rep. 742, 27 Atl. 545.

197 Sanderson v. Pennsylvania Coal Co., 86 Pa. St. 401, 27 Am. Rep. 711, cited and approved in Tennessee Coal Co. v. Hamilton, 100 Ala. 252, 46 Am. St. Rep. 48, 14 South. 167.

198

sance. And though the work of installing, devising or planning a sewerage system is rather an exercise of governmental power, nevertheless some courts hold municipalities up to the same rule of responsibility as they do individuals, without regard to whether the pollution of a stream is due to the plan or construction,199 while other courts impose the liability only when it is due to the improper construction or unreasonable use of the sewers, holding the city exempt, when it is caused by the plan.200 The prevailing view appears to be that municipal corporations are held to the same degree of responsibility for pollution of fresh water streams by sewage, when it is not due to the plan adopted, as are individuals. Cities have the same riparian rights in a stream running through their corporate limits, or bordering thereon as have individuals, and may therefore make the same reasonable use of the waters as may the individual. But what constitutes a reasonable use by a city must be governed by radically different tests than the use by the individual.

201

A city may make use of streams to discharge its sewage therein where there is no other natural or reasonably possible method of discharging sewage, so long as it does not materially interfere with the rights of former riparian owners. In some instances the right is denied, notwithstanding the fact that a large population will be thereby inconvenienced in the interruption of the use of a system of sewers.202 The right of a municipality to pollute the waters of 198 Winchell v. Waukesha, 110 Wis. 101, 84 Am. St. Rep. 902, 85 N. W. 668. See valuable note, 84 Am. St. Rep. 908-926.

199 Id.

200 Merrifield v. City of Worcester, 110 Mass. 216, 14 Am. Rep. 562.

201 Brayton v. Fall River, 113 Mass. 218, 18 Am. Rep. 470.

202 Village of Dwight v. Hayes, 150 Ill. 273, 41 Am. St. Rep. 367, 37 N. E. 218.

a stream by the discharge of sewage into it is in the nature of an easement, which, it is said, can only be created by grant or prescription.203 The liability of municipalities for polluting a stream of water by discharging therein its sewage so as to create a public or private nuisance the same as individuals is a wellsettled rule of law.20

203 Village of Dwight v. Hayes, 150 Ill. 273, 41 Am. St. Rep. 367, 37 N. E. 218.

204 California: Lind v. San Luis Obispo, 109 Cal. 340, 42 Pac. 437; Peterson v. Santa Rosa, 119 Cal. 387, 51 Pac. 557.

Connecticut.-If a municipal corporation creates a nuisance on the land of a lower proprietor by discharging its sewage, consisting of surplus water and house sewage into a stream, it is liable therefor, although others contributed to it: Watson v. New Milford, 72 Conn. 561, 77 Am. St. Rep. 345, 45 Atl. 167; Platt v. Waterbury, 72 Conn. 531, 77 Am. St. Rep. 335, 45 Atl. 154.

Illinois. The right to pollute the waters of a stream by the discharge of sewage is denied, notwithstanding the fact that a large population will be thereby inconvenienced in the interruption of the use of a system of sewers: Village of Dwight v. Hayes, 150 Ill. 273, 41 Am. St. Rep. 367, 37 N. E. 218. See Robb v. La Grange, 158 III. 21, 42 N. E. 77.

Massachusetts.-If the pollution of a stream is due to the plan of sewerage adopted by the city, there is no liability, but if due to the improper construction or unreasonable use of the sewers, or to the negligence or other fault of the city in the care or management of them, then there is a liability: Merrifield v. City of Worcester, 110 Mass. 216, 14 Am. Rep. 562.

Missouri: Smith v. Sedalia, 152 Mo. 283, 53 S. W. 907.

New York. The general doctrine which gives to a person injured by the pollution of air or water, to the use of which in its natural condition he is entitled, a right of action, is applied to a city, and it may be enjoined from polluting a stream by the discharge of sewage: Chapman v. City of Rochester, 110 N. Y. 273, 6 Am. St. Rep. 366, 18. N. E. 88.

Ohio: Cleveland v. Beaumont, 2 Clev. 172, 2 U. L. B. 345. Affirmed by Supreme court, no report. See Kemper v. Widows' Home, 9 Ann. Law Rec. 731. Of a city without legal appropriation causes its sewage to be emptied into a natural watercourse, thereby creating a nuisance inflicting special and substantial damages

In Indiana, however, it is held that a city has a right to discharge its sewage into a natural watercourse extending through it, where there is no other natural or reasonably possible method of discharging sewage, without liability to riparian owners, where the city acts in conformity with the law, and without negligence.205

§ 686. Same-Pollution of Tidal Streams.-Pollution of tidal streams by municipal corporations by their sewerage systems presents a different phase of the question, because the title to tidal streams below ordinary high-water mark is in the state as an absolute owner, the title of riparian owners extending on a riparian proprietor, it is liable to an action for damages. City of Mansfield v. Balliett, 65 Ohio St. 451; Rhodes v. Cleveland, 10 Ohio, 160.

Pennsylvania.-City is liable to a riparian owner if it, by the system of sewer drainage, causes filthy and unwholesome sewage to flow into and pollute a natural running stream: Good v. Altoona City, 162 Pa. St. 493, 42 Am. St. Rep. 840, 29 Atl. 741; Blizzard v. Danville Borough, 175 Pa. St. 479, 34 Atl. 846.

Rhode Island.-If a city turns into a sewer a much larger amount of surplus water and sewage than was contemplated, it is answerable in damages: King v. Granger, 21 R. I. 93, 79 Am. St. Rep. 799, 41 Atl. 1012.

Virginia.-If a sewer, controlled by a city, is so negligently constructed or altered as to cause water and excrement to flow upon the property of a private owner, it is a nuisance, for which the city is liable: Chalkley v. City of Richmond, 88 Va. 402, 29 Am. St. Rep. 730, 14 S. E. 339.

Wisconsin.-Legislative authority to install a sewer system carries no implication of authority to create or maintain a nuisance, whether it results from negligence or from the plan adopted. City held liable for nuisance where the stream into which sewage emptied gave rise to offensive and disagreeable odors, rendering the water unfit for bathing: Winchell v. Waukesha, 110 Wis. 101, 84 Am. St. Rep. 902, 85 N. W. 668.

205 Valparaiso v. Hagen, 153 Ind. 337, 74 Am. St. Rep. 305, 51 N. E. 1062; Barnard v. Sherley, 135 Ind. 547, 41 Am. St. Rep. 454, 24 N. E. 600, 35 N. E. 117.