"The pollution of a natural stream is a wrong actionable at the suit of any riparian owner past whose land the water so polluted flows, and, as we have just seen, pollution even of underground water is also actionable. The term pollution is here used in a wide sense to include any alteration of the natural quality of the water whereby it is rendered less fit for any purpose for which in its natural state it is capable of being used. Thus, it is actionable to raise the temperature of the stream by discharging into it hot water from a factory, or to make soft water hard by discharging into the stream water impregnated with lime, no less than to pollute the stream by pouring into it the sewage of a town or the chemical refuse from a factory....."
Alagiriswami, J.
1. The appeal arises out of a suit filed by the plaintiffs in a representative capacity on behalf of the villagers of Pottalkadu to restrain the defendants from laying salt pane in the bed of the suit tank thereby making the water in it useless to the people for bathing and taking drinking water. The defendants contended that the plaintiffs are not the representatives of Pottalkadu village, that the suit land is not a tank, that only during the rainy season there used to be stagnation of water in the pits, that the villagers used to take water from another tank, that there are salt pans all round the suit land, and that the suit land is fit only for raising salt pans and that there is no drinking water in that locality. The trial court held that some of the villagers used to take water from the suit tank, that the cattle also used to drink water from it and that the villagers used to take bath and wash their cattle therein. All the same, it took the view that as during the past about ten years, a number of persons have laid extensive salt pans almost on all the sides of the suit tank with the result that even if the rain water were to gather and flow into the suit tank, it cannot but be saltish and it cannot be said that water has become saltish because of the defendants laying salt pans in a portion of the suit tank and therefore, the plaintiffs were not entitled to the relief of injunction asked for against the defendants. On appeal, the lower appellate court held that the property in dispute is a tank and it has been recognised and used as such by the villagers in general and that the question as to whether the water from the tank is fit for domestic use or not is foreign to the scope of the present enquiry, but that the question is whether the defendants, though they are some of the villagers, are as of right entitled to convert the property or any portion there of into salt pans that they are not so entitled and therefore any injunction as prayed for can issue. Hence it allowed the appeal and decreed the suit.
2. In this court it is urged on behalf of the appellants that the suit tank being a Government property and not the property of the villagers in general, there can be no injunction restraining the defendants from converting the bed of the suit tank into salt pans, and that it is for the Government, who are the owners of the tank to prevent the defendants from doing anything on their property. There is no doubt that the suit property is a tank poromboke. There is no doubt either that the plaintiffs have no proprietary rights in it, even though a committee of the village might have been looking after it; nor have the defendants any permission granted to them to use the tank bed for purposes of converting it into salt pans. There is also no doubt, as held by both the courts below, that the water in the suit tank has been used by the villagers in general. It is also reasonably clear from the evidence that the water must have been so used from time immemorial. Even so, the learned appellate Judge is not correct in saying that the question whether the water from the tank is fit for domestic use or not is foreign to the scope of the enquiry and the only question is whether the defendants are, as of right, entitled to convert the property or any portion thereof into salt pans? The plaintiffs not being the owners of the land, are not entitled to an Injunction restraining the defendants, unless some right of theirs is infringed. Even if the defendants were unlawfully converting the tank into salt pans, it is a matter between them and the Government, who are the owners of the suit land. The plaintiffs can have a cause of action, only if they had some right in the tank and therefore the view of the lower appellate court on this part of the case is not correct. It was, therefore, urged on behalf of the appellants that the appeal should, at least, be remanded to the lower appellate Court for giving a finding as to whether the plaintiffs have any right over or in respect of the tank as a finding on that point is necessary for a proper disposal of the appeal. I considered that it is unnecessary to remand the appeal for that purpose and I have, therefore, been taken through the evidence in this Case by the advocates on both sides and I am satisfied that the finding of the trial Court that some of the villagers used to take water from the suit tank, that their cattle also used to drink water from the same, and that they used to take bath and wash their cattle therein, is correct. But, naturally enough, not everybody in the village might have been using the water of the tank, nor is it necessary that it should have been so used before the villagers can acquire a common right in respect of the water in the tank. That there used to be water in this tank is also clear from the evidence of D. W. 1, who says that the overflowing from the suit land will flow towards Mathikettan odai. it is difficult to accept the evidence of defendants' witnesses that during rainy season water used to spread in the suit land, but would drain off in the next day. I am of opinion, therefore, that the villagers have an immemorial right to the use of the water in the tank for their drinking and bathing purposes, as also for bathing and washing their cattle. it is also reasonably clear from the evidence that there is some water at least in the tank and that the water has become saltish. The evidence on behalf of the plaintiffs clearly establishes this point and it has not been seriously assailed or shaken by cross-examination. Though the water for drinking purposes seems also to be taken from other places in the village, it does not mean that the plaintiffs have no right over the water in the tank. it is clear from the evidence on either side that the water is now saltish. It is, however, urged on behalf of the appellants that there are salt pans all round and that must be responsible for the water in the tank becoming saltish and that therefore, no injunction can issue in this case. it is further urged that, in any case, the action of the defendants has only to a small extent, been responsible for the water becoming saltish and that, therefore, no injunction can issue. It is this argument that seems to have impressed itself on the trial judge and to have been responsible for his dismissing the suit,
3. Once it is established that the villagers have a common right over the water in the tank for purposes of using it for their bathing and drinking purposes, any interference with that right would give them a cause of action, even though the interference is not in respect of a land belonging to the plaintiffs. The action of the defendants would amount to a nuisance. According to Professor Winfield, a nuisance is an unlawful interference with a person's use or enjoyment of land, or of some right over, or in connection with it (Winfield, Law of Torts 4th Edn. page 436), According to Clerk and Lindsell on Torts, 1947, nuisance is an act or omission which is an interference with, disturbance of or annoyance to a person in the exercise or enjoyment of (a) a right belonging to him as a member of the public, when it is a public nuisance, or (b) his ownership or occupation of land or of some easement, quasi-easement or other right used or enjoyed in connection with land, when it is a private nuisance. According to Salmond on Torts, 13th Edn. page 233--
"The pollution of a natural stream is a wrong actionable at the suit of any riparian owner past whose land the water so polluted flows, and, as we have just seen, pollution even of underground water is also actionable. The term pollution is here used in a wide sense to include any alteration of the natural quality of the water whereby it is rendered less fit for any purpose for which in its natural state it is capable of being used. Thus, it is actionable to raise the temperature of the stream by discharging into it hot water from a factory, or to make soft water hard by discharging into the stream water impregnated with lime, no less than to pollute the stream by pouring into it the sewage of a town or the chemical refuse from a factory....." Then he states as follows at page 234:
"Pollution is actionable without proof of actual damage. The lower owner has a right to the continued flow of the stream in its natural quality and any sensible alteration of this quality which renders the water less fit for any purpose is an actionable wrong even though the plaintiff has not in fact been prevented from making any use of the water which he has hitherto made or now desires to make of it. There is no right of 'reasonable pollution,'" According to Kerr "Treatise on the Law of Practice of Injunctions" 1927 Edn. page 217--
"A riparian owner is entitled to the flow of water past his land, in its natural state of purity underforated by noxious matter discharged into it by others and any one who fouls the water infringes a right of property of the riparian owner, who can maintain an action against the wrongdoer without proving that the pollution has caused him actual damage and the action can be maintained even although other persons may have so fouled the water that the acts of the wrongdoer may not have rendered the water less applicable to useful purposes than it was before, for the damage is an injury to a right, and therefore actionable".
At page 238 it is observed as follows--
"An Injunction will be granted to restrain the fouling of a stream so as to render the water unfit for domestic purposes or for cattle to drink or for fish to live in it or for the purposes of manufacture, so also an injunction will be granted to restrain the discharge of heated water into a stream or the pollution of a water supply by the escape of gas. A riparian owner may maintain an action to restrain the pollution of a stream without proving that he has sustained actual damage by the wrongful act and the fact that the stream has been fouled by other persons is no defence to the action".
4. In Wood v. Waud, (1849) 3 Ex. 758, it was held--
"A riparian proprietor has a right to the natural stream of water flowing through the land in its natural state; and If the water be polluted by a proprietor higher up the stream, so as to occasion damage in law, though not in fact, to the first mentioned proprietor, it gives him a good cause of action against the upper proprietor unless the latter have gained a right by long enjoyment or grant". Of course, while in the case of riparian owners relief may be obtainable by the mere fact of the pollution even though there may not, in fact, be any sensible Inconvenience or reduction of the comforts of the riparian owner in the case of persons, who merely have a right over a property not belonging to them, damage, in fact, would have to be proved. In the abovesaid case, the wrongful act of the defendant made no practical difference, that is, the pollution by the defendants did not make it less applicable to useful purposes than such water was before. But the court held that notwithstanding that the plaintiffs have received damage in point of law, as they had a right to the natural stream flowing through the land. In its natural state, as an incident to the right to the land on which watercourse flowed as it was a case of an Injury to a right. It may be that where one is not a riparian owner, but has only a common right actual damage may have to be proved. In Crossley and Sons Ltd. v. Lightowler (1867) 2 Ch A 478, it was held that the fact that the stream is fouled by others, is not a defence to a suit to restrain the fouling by one and that the owner of land on the banks of a river can maintain a suit to restrain the fouling of the water of the river, without showing that the fouling is actually injurious to him.
At page 483, their Lordships say this
"From what has been already said, it may be collected that, in my opinion. If the plaintiffs had proved the pollution of the Hobble opposite to their mills by the defendants, they would have had good ground for an injunction, although they were not actually using the water for their business."
Thus, it would be seen that the plaintiffs would be entitled to an injunction even though the land in respect of which they claimed injunction is not owned by them and the only right which they have is a common right over the property belonging and it is no defence to the action of the plaintiffs that the people other than the defendants have already done something which has had the effect of making the water in the tank brackish.
5. Reliance is, however, placed by the appellants on three decisions. The first of them is one reported in Attorney General v. Gee, (1870) 10 EQ 131. There at page 137 the following passage occurs---
"This brings us to the question whether the nature and extent of the nature in this case is such that this court ought to interfere by injunction to prevent it I have throughout felt this point to be one of some difficulty. I adhere to the opinion which was expressed by me and by the Lord Chancellor in Attorney General v. Sheffield Gas Consumers Co. (1853) 3 D. E. M. and G. 304, that it is not in every case of nuisance that this court should Interfere, I think that it ought not to do so in cases in which the Injury is merely temporary and trifling, but I think that it ought to do so in cases in which the Injury is permanent and serious; and in determining whether the injury is serious or not regard must be had to all the consequences which may flow from it"
It is urged that in this case the Injury is neither permanent nor serious. I cannot agree. It would be seen that in that very decision their Lordships go on to say further as follows
"The injury here is in the course of being abated in the manner I have pointed out The injury when this Information was filed, I am satisfied, was not greater or different to what it had been ten of twenty years before. Therefore upon these grounds, I am unable to see that there could possibly be any advantage Derived by interfering by injunction."
8. In Lillywhite v. Trimmer, (1867) 36 LJ Ch 525--
"Bill was filed to restrain a local board of health from discharging sewage into their river so as to be a nuisance and Injury to the plaintiff. The Court, finding that the plaintiff sustained no material Injury and that the nuisance If any, had been to a great extent abated since the filing of the bill"
remarked that in cases of this class, where Important public interests are involved, such as the Improvement of the drainage of a town, the court will protect the private rights of the Individual if affected in any material degree, but will at the same time have regard to the nature and extent of the alleged Injury or nuisance and to the balance of inconvenience. That case can have no application to the facts of this case where it is not the right of a local board that is involved and the action of the defendants is based on no manner of light whatsoever in the land.
7. The third case relied upon is the one reported in Wood v. Sutcliffee, (1851) 21 LJ Ch 253, where it was held that a person may by long user acquire a right to the water of a stream free from pollution, though he may have no proprietorship in the stream, and may acquire a right to pour polluted matter into a stream as against all new comers, but that a person having established his right at law is not as a matter of course, entitled to an Injunction, particularly where the Injunction would not restore the plaintiff to the right he has established and where the act complained of may be compensated by pecuniary damages. It would be noticed from the above decision that a person can acquire a right to the water of a stream free from pollution, though he may have no proprietorship in the stream. This would help the plaintiffs. But the appellants defendants contend that a person having established his right, is not, as a matter of course, entitled to an injunction, particularly where the Injunction would not restore the plaintiffs to the right they have established in this cases because all around there are salt pans and the water in the tank would in any case become saltish. The evidence in that case proved that owing to the Increase of polluting matter poured into the stream from other sources than that of the defendant's works, the plaintiff never could be reinstated in his original rights and that the damage might be compensated by money; and that the plaintiff had been, guilty of such an amount of acquiescence as would disentitle him to an injunction.
It cannot be said that in the present case the plaintiffs have been guilty of such an amount of acquiescence as would disentitle them to an injunction, nor can the damage to them be compensated by money. The only question is whether owing to the increase of polluting matter poured into the stream from other sources than that of the defendant's works, the plaintiffs never could be reinstated in their original rights.
8. At page 259 in the above decision it is observed as follows:
"Adverting to what I conceive to be the conditions which must concur to induce this court to interfere, the first question which arises is, whether, assuming that damage is done by the defendant's works, the restraining of that damage will restore, or tend to restore, the plaintiffs to the right which they had originally of having the water clean to their works. Now as I have said, if it was only this, "there is somebody else fouling the water besides me', the saying that would be no defence to such an application, but if by reason of the whole change in the condition of the surrounding country and neighbourhood the stream has become polluted to such an extent that it cannot be used for the purposes of the plaintiffs' works, the granting the injunction to restrain this one wrongdoer, if he be such, from continuing his works would do no good to the plaintiffs. It will not do them that good, the doing of which is alone the ground on which a court of equity will use its strong power to interfere to restrain the defendant's works from going on. If, notwithstanding a certain degree of pollution of the water, the plaintiffs can still use the water, although not so usefully, and then the defendant pollutes it to make it so much worse than they can use it in a less effective manner than they did before, or if the degree of pollution existing, we will say from Messrs. Ripley's works, may be prevented by the plaintiffs by the same process which they were using against Mr. Sutcliff If that were the state of the case, of course they would have a right to say, "This is a case in which an injunction would restore, or tend to restore, us to the rights which we originally had with regard to the stream. Now, there is nothing to show me, and I am not able to say from the evidence before me, how far the non-user of Messrs. Bipley of that extent of pollution which they have of late years caused to this water --how far if they were away, the water is polluted by the other works (for there are a great many of them, and I have only three brought here before me particularly), or how far the pollution arising from those works would be so comparatively small as that the plaintiffs might continue to carry on their business effectively by using the water. But I have this fact, that Messrs. Ripley's increase of works has been comparatively recent, the defendant's dyeworks did not come into operation until the early part of 1845. Then, were the plaintiffs, before the defendant's works came into operation, able to use the water of the stream for their works, either in the shape of using it for washing wool, or in the shape of using it in boilers? Clearly not. And, therefore, I think that that affords a very strong ground for saying that the mere removal of the defendant's works, or preventing the defendant from carrying on his works in the manner in which he now does, really would not have the effect of causing the water of this stream to come down to the plaintiffs' works in the same pure and unpolluted state, which the plaintiffs, according to their original right, ought to have. I do not feel sure, therefore, even if it turned upon this part of the case, that the granting the injunction, while it would have the effect, if not of ruining the defendant, of doing him most serious mischief, would, on the other hand, have the effect of benefiting the plaintiffs by restoring them, or tending to restore them, to the rights which they contend for, and which I admit that they have".
9. It is not possible in this case to say that the plaintiffs can never be reinstated to their original rights. The evidence in this case is not sufficient to hold that the existence of the salt pans on private lands round about has made the water in the tank so saltish that the injunction restraining the defendants from laying salt pans would not have any appreciable effect on the quality of the water in the tank. It may be that if the Government permits the defendants to lay salt pans in the tank, circumstances might arise where the Injunction might not be of any use. But till that contingency arises, I think it cannot be said that the position has so far deteriorated that the plaintiffs cannot be reasonably restored to their original position. There is no evidence in this case to justify such a conclusion. The plaintiffs are, therefore, entitled to the injunction which they have prayed for. It follows that the judgment of the lower appellate court allowing the appeal and decreeing the suit is correct,
10. The second appeal is dismissed without costs. Leave granted.
Print Page
Madras High Court
Pakkle And Ors. vs P. Aiyasami Ganapathi And Ors. on 5 January, 1968
Equivalent citations: AIR 1969 Mad 351
Bench: Alagiriswami
JUDGMENTAlagiriswami, J.
1. The appeal arises out of a suit filed by the plaintiffs in a representative capacity on behalf of the villagers of Pottalkadu to restrain the defendants from laying salt pane in the bed of the suit tank thereby making the water in it useless to the people for bathing and taking drinking water. The defendants contended that the plaintiffs are not the representatives of Pottalkadu village, that the suit land is not a tank, that only during the rainy season there used to be stagnation of water in the pits, that the villagers used to take water from another tank, that there are salt pans all round the suit land, and that the suit land is fit only for raising salt pans and that there is no drinking water in that locality. The trial court held that some of the villagers used to take water from the suit tank, that the cattle also used to drink water from it and that the villagers used to take bath and wash their cattle therein. All the same, it took the view that as during the past about ten years, a number of persons have laid extensive salt pans almost on all the sides of the suit tank with the result that even if the rain water were to gather and flow into the suit tank, it cannot but be saltish and it cannot be said that water has become saltish because of the defendants laying salt pans in a portion of the suit tank and therefore, the plaintiffs were not entitled to the relief of injunction asked for against the defendants. On appeal, the lower appellate court held that the property in dispute is a tank and it has been recognised and used as such by the villagers in general and that the question as to whether the water from the tank is fit for domestic use or not is foreign to the scope of the present enquiry, but that the question is whether the defendants, though they are some of the villagers, are as of right entitled to convert the property or any portion there of into salt pans that they are not so entitled and therefore any injunction as prayed for can issue. Hence it allowed the appeal and decreed the suit.
2. In this court it is urged on behalf of the appellants that the suit tank being a Government property and not the property of the villagers in general, there can be no injunction restraining the defendants from converting the bed of the suit tank into salt pans, and that it is for the Government, who are the owners of the tank to prevent the defendants from doing anything on their property. There is no doubt that the suit property is a tank poromboke. There is no doubt either that the plaintiffs have no proprietary rights in it, even though a committee of the village might have been looking after it; nor have the defendants any permission granted to them to use the tank bed for purposes of converting it into salt pans. There is also no doubt, as held by both the courts below, that the water in the suit tank has been used by the villagers in general. It is also reasonably clear from the evidence that the water must have been so used from time immemorial. Even so, the learned appellate Judge is not correct in saying that the question whether the water from the tank is fit for domestic use or not is foreign to the scope of the enquiry and the only question is whether the defendants are, as of right, entitled to convert the property or any portion thereof into salt pans? The plaintiffs not being the owners of the land, are not entitled to an Injunction restraining the defendants, unless some right of theirs is infringed. Even if the defendants were unlawfully converting the tank into salt pans, it is a matter between them and the Government, who are the owners of the suit land. The plaintiffs can have a cause of action, only if they had some right in the tank and therefore the view of the lower appellate court on this part of the case is not correct. It was, therefore, urged on behalf of the appellants that the appeal should, at least, be remanded to the lower appellate Court for giving a finding as to whether the plaintiffs have any right over or in respect of the tank as a finding on that point is necessary for a proper disposal of the appeal. I considered that it is unnecessary to remand the appeal for that purpose and I have, therefore, been taken through the evidence in this Case by the advocates on both sides and I am satisfied that the finding of the trial Court that some of the villagers used to take water from the suit tank, that their cattle also used to drink water from the same, and that they used to take bath and wash their cattle therein, is correct. But, naturally enough, not everybody in the village might have been using the water of the tank, nor is it necessary that it should have been so used before the villagers can acquire a common right in respect of the water in the tank. That there used to be water in this tank is also clear from the evidence of D. W. 1, who says that the overflowing from the suit land will flow towards Mathikettan odai. it is difficult to accept the evidence of defendants' witnesses that during rainy season water used to spread in the suit land, but would drain off in the next day. I am of opinion, therefore, that the villagers have an immemorial right to the use of the water in the tank for their drinking and bathing purposes, as also for bathing and washing their cattle. it is also reasonably clear from the evidence that there is some water at least in the tank and that the water has become saltish. The evidence on behalf of the plaintiffs clearly establishes this point and it has not been seriously assailed or shaken by cross-examination. Though the water for drinking purposes seems also to be taken from other places in the village, it does not mean that the plaintiffs have no right over the water in the tank. it is clear from the evidence on either side that the water is now saltish. It is, however, urged on behalf of the appellants that there are salt pans all round and that must be responsible for the water in the tank becoming saltish and that therefore, no injunction can issue in this case. it is further urged that, in any case, the action of the defendants has only to a small extent, been responsible for the water becoming saltish and that, therefore, no injunction can issue. It is this argument that seems to have impressed itself on the trial judge and to have been responsible for his dismissing the suit,
3. Once it is established that the villagers have a common right over the water in the tank for purposes of using it for their bathing and drinking purposes, any interference with that right would give them a cause of action, even though the interference is not in respect of a land belonging to the plaintiffs. The action of the defendants would amount to a nuisance. According to Professor Winfield, a nuisance is an unlawful interference with a person's use or enjoyment of land, or of some right over, or in connection with it (Winfield, Law of Torts 4th Edn. page 436), According to Clerk and Lindsell on Torts, 1947, nuisance is an act or omission which is an interference with, disturbance of or annoyance to a person in the exercise or enjoyment of (a) a right belonging to him as a member of the public, when it is a public nuisance, or (b) his ownership or occupation of land or of some easement, quasi-easement or other right used or enjoyed in connection with land, when it is a private nuisance. According to Salmond on Torts, 13th Edn. page 233--
"The pollution of a natural stream is a wrong actionable at the suit of any riparian owner past whose land the water so polluted flows, and, as we have just seen, pollution even of underground water is also actionable. The term pollution is here used in a wide sense to include any alteration of the natural quality of the water whereby it is rendered less fit for any purpose for which in its natural state it is capable of being used. Thus, it is actionable to raise the temperature of the stream by discharging into it hot water from a factory, or to make soft water hard by discharging into the stream water impregnated with lime, no less than to pollute the stream by pouring into it the sewage of a town or the chemical refuse from a factory....." Then he states as follows at page 234:
"Pollution is actionable without proof of actual damage. The lower owner has a right to the continued flow of the stream in its natural quality and any sensible alteration of this quality which renders the water less fit for any purpose is an actionable wrong even though the plaintiff has not in fact been prevented from making any use of the water which he has hitherto made or now desires to make of it. There is no right of 'reasonable pollution,'" According to Kerr "Treatise on the Law of Practice of Injunctions" 1927 Edn. page 217--
"A riparian owner is entitled to the flow of water past his land, in its natural state of purity underforated by noxious matter discharged into it by others and any one who fouls the water infringes a right of property of the riparian owner, who can maintain an action against the wrongdoer without proving that the pollution has caused him actual damage and the action can be maintained even although other persons may have so fouled the water that the acts of the wrongdoer may not have rendered the water less applicable to useful purposes than it was before, for the damage is an injury to a right, and therefore actionable".
At page 238 it is observed as follows--
"An Injunction will be granted to restrain the fouling of a stream so as to render the water unfit for domestic purposes or for cattle to drink or for fish to live in it or for the purposes of manufacture, so also an injunction will be granted to restrain the discharge of heated water into a stream or the pollution of a water supply by the escape of gas. A riparian owner may maintain an action to restrain the pollution of a stream without proving that he has sustained actual damage by the wrongful act and the fact that the stream has been fouled by other persons is no defence to the action".
4. In Wood v. Waud, (1849) 3 Ex. 758, it was held--
"A riparian proprietor has a right to the natural stream of water flowing through the land in its natural state; and If the water be polluted by a proprietor higher up the stream, so as to occasion damage in law, though not in fact, to the first mentioned proprietor, it gives him a good cause of action against the upper proprietor unless the latter have gained a right by long enjoyment or grant". Of course, while in the case of riparian owners relief may be obtainable by the mere fact of the pollution even though there may not, in fact, be any sensible Inconvenience or reduction of the comforts of the riparian owner in the case of persons, who merely have a right over a property not belonging to them, damage, in fact, would have to be proved. In the abovesaid case, the wrongful act of the defendant made no practical difference, that is, the pollution by the defendants did not make it less applicable to useful purposes than such water was before. But the court held that notwithstanding that the plaintiffs have received damage in point of law, as they had a right to the natural stream flowing through the land. In its natural state, as an incident to the right to the land on which watercourse flowed as it was a case of an Injury to a right. It may be that where one is not a riparian owner, but has only a common right actual damage may have to be proved. In Crossley and Sons Ltd. v. Lightowler (1867) 2 Ch A 478, it was held that the fact that the stream is fouled by others, is not a defence to a suit to restrain the fouling by one and that the owner of land on the banks of a river can maintain a suit to restrain the fouling of the water of the river, without showing that the fouling is actually injurious to him.
At page 483, their Lordships say this
"From what has been already said, it may be collected that, in my opinion. If the plaintiffs had proved the pollution of the Hobble opposite to their mills by the defendants, they would have had good ground for an injunction, although they were not actually using the water for their business."
Thus, it would be seen that the plaintiffs would be entitled to an injunction even though the land in respect of which they claimed injunction is not owned by them and the only right which they have is a common right over the property belonging and it is no defence to the action of the plaintiffs that the people other than the defendants have already done something which has had the effect of making the water in the tank brackish.
5. Reliance is, however, placed by the appellants on three decisions. The first of them is one reported in Attorney General v. Gee, (1870) 10 EQ 131. There at page 137 the following passage occurs---
"This brings us to the question whether the nature and extent of the nature in this case is such that this court ought to interfere by injunction to prevent it I have throughout felt this point to be one of some difficulty. I adhere to the opinion which was expressed by me and by the Lord Chancellor in Attorney General v. Sheffield Gas Consumers Co. (1853) 3 D. E. M. and G. 304, that it is not in every case of nuisance that this court should Interfere, I think that it ought not to do so in cases in which the Injury is merely temporary and trifling, but I think that it ought to do so in cases in which the Injury is permanent and serious; and in determining whether the injury is serious or not regard must be had to all the consequences which may flow from it"
It is urged that in this case the Injury is neither permanent nor serious. I cannot agree. It would be seen that in that very decision their Lordships go on to say further as follows
"The injury here is in the course of being abated in the manner I have pointed out The injury when this Information was filed, I am satisfied, was not greater or different to what it had been ten of twenty years before. Therefore upon these grounds, I am unable to see that there could possibly be any advantage Derived by interfering by injunction."
8. In Lillywhite v. Trimmer, (1867) 36 LJ Ch 525--
"Bill was filed to restrain a local board of health from discharging sewage into their river so as to be a nuisance and Injury to the plaintiff. The Court, finding that the plaintiff sustained no material Injury and that the nuisance If any, had been to a great extent abated since the filing of the bill"
remarked that in cases of this class, where Important public interests are involved, such as the Improvement of the drainage of a town, the court will protect the private rights of the Individual if affected in any material degree, but will at the same time have regard to the nature and extent of the alleged Injury or nuisance and to the balance of inconvenience. That case can have no application to the facts of this case where it is not the right of a local board that is involved and the action of the defendants is based on no manner of light whatsoever in the land.
7. The third case relied upon is the one reported in Wood v. Sutcliffee, (1851) 21 LJ Ch 253, where it was held that a person may by long user acquire a right to the water of a stream free from pollution, though he may have no proprietorship in the stream, and may acquire a right to pour polluted matter into a stream as against all new comers, but that a person having established his right at law is not as a matter of course, entitled to an Injunction, particularly where the Injunction would not restore the plaintiff to the right he has established and where the act complained of may be compensated by pecuniary damages. It would be noticed from the above decision that a person can acquire a right to the water of a stream free from pollution, though he may have no proprietorship in the stream. This would help the plaintiffs. But the appellants defendants contend that a person having established his right, is not, as a matter of course, entitled to an injunction, particularly where the Injunction would not restore the plaintiffs to the right they have established in this cases because all around there are salt pans and the water in the tank would in any case become saltish. The evidence in that case proved that owing to the Increase of polluting matter poured into the stream from other sources than that of the defendant's works, the plaintiff never could be reinstated in his original rights and that the damage might be compensated by money; and that the plaintiff had been, guilty of such an amount of acquiescence as would disentitle him to an injunction.
It cannot be said that in the present case the plaintiffs have been guilty of such an amount of acquiescence as would disentitle them to an injunction, nor can the damage to them be compensated by money. The only question is whether owing to the increase of polluting matter poured into the stream from other sources than that of the defendant's works, the plaintiffs never could be reinstated in their original rights.
8. At page 259 in the above decision it is observed as follows:
"Adverting to what I conceive to be the conditions which must concur to induce this court to interfere, the first question which arises is, whether, assuming that damage is done by the defendant's works, the restraining of that damage will restore, or tend to restore, the plaintiffs to the right which they had originally of having the water clean to their works. Now as I have said, if it was only this, "there is somebody else fouling the water besides me', the saying that would be no defence to such an application, but if by reason of the whole change in the condition of the surrounding country and neighbourhood the stream has become polluted to such an extent that it cannot be used for the purposes of the plaintiffs' works, the granting the injunction to restrain this one wrongdoer, if he be such, from continuing his works would do no good to the plaintiffs. It will not do them that good, the doing of which is alone the ground on which a court of equity will use its strong power to interfere to restrain the defendant's works from going on. If, notwithstanding a certain degree of pollution of the water, the plaintiffs can still use the water, although not so usefully, and then the defendant pollutes it to make it so much worse than they can use it in a less effective manner than they did before, or if the degree of pollution existing, we will say from Messrs. Ripley's works, may be prevented by the plaintiffs by the same process which they were using against Mr. Sutcliff If that were the state of the case, of course they would have a right to say, "This is a case in which an injunction would restore, or tend to restore, us to the rights which we originally had with regard to the stream. Now, there is nothing to show me, and I am not able to say from the evidence before me, how far the non-user of Messrs. Bipley of that extent of pollution which they have of late years caused to this water --how far if they were away, the water is polluted by the other works (for there are a great many of them, and I have only three brought here before me particularly), or how far the pollution arising from those works would be so comparatively small as that the plaintiffs might continue to carry on their business effectively by using the water. But I have this fact, that Messrs. Ripley's increase of works has been comparatively recent, the defendant's dyeworks did not come into operation until the early part of 1845. Then, were the plaintiffs, before the defendant's works came into operation, able to use the water of the stream for their works, either in the shape of using it for washing wool, or in the shape of using it in boilers? Clearly not. And, therefore, I think that that affords a very strong ground for saying that the mere removal of the defendant's works, or preventing the defendant from carrying on his works in the manner in which he now does, really would not have the effect of causing the water of this stream to come down to the plaintiffs' works in the same pure and unpolluted state, which the plaintiffs, according to their original right, ought to have. I do not feel sure, therefore, even if it turned upon this part of the case, that the granting the injunction, while it would have the effect, if not of ruining the defendant, of doing him most serious mischief, would, on the other hand, have the effect of benefiting the plaintiffs by restoring them, or tending to restore them, to the rights which they contend for, and which I admit that they have".
9. It is not possible in this case to say that the plaintiffs can never be reinstated to their original rights. The evidence in this case is not sufficient to hold that the existence of the salt pans on private lands round about has made the water in the tank so saltish that the injunction restraining the defendants from laying salt pans would not have any appreciable effect on the quality of the water in the tank. It may be that if the Government permits the defendants to lay salt pans in the tank, circumstances might arise where the Injunction might not be of any use. But till that contingency arises, I think it cannot be said that the position has so far deteriorated that the plaintiffs cannot be reasonably restored to their original position. There is no evidence in this case to justify such a conclusion. The plaintiffs are, therefore, entitled to the injunction which they have prayed for. It follows that the judgment of the lower appellate court allowing the appeal and decreeing the suit is correct,
10. The second appeal is dismissed without costs. Leave granted.
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