Appendix C: Riparian Rights Case Summaries

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1858: Miner v. Gilmour(1)

An upstream tanner may not block a river’s flow to a downstream miller.

Harlow Miner owned a tannery beside the River Yamaska, in Lower Canada. Francis Gilmour owned land across the river, along with a grist mill downstream. Between the two men’s property stretched a dam, the operation of which they disputed. Mr. Miner preferred the gate in the dam to remain closed, increasing the amount of water available to propel his tannery’s wheels and machinery. But Mr. Gilmour insisted on keeping the gate open, causing more water to flow downstream to his mill.

In 1853, Mr. Miner commenced legal proceedings against his neighbour. Mr. Gilmour responded that in dry weather, it would be impossible to operate his waterpower-driven mill without opening the upstream gate. Without the additional water he would have to shut down for several months a year, causing great inconvenience.

The case went all the way to the Privy Council in England, which determined that the disputed dam violated Mr. Gilmour’s riparian rights by interrupting the river’s flow; he would be fully justified in opening the gates.

In his judgment for the Privy Council, Lord Kingsdown summarized the riparian law:

By the general law applicable to running streams, every riparian proprietor has a right to what may be called the ordinary use of the water flowing past his land; for instance, to the reasonable use of the water for his domestic purposes and for his cattle, and this without regard to the effect which such use may have, in case of a deficiency, upon proprietors lower down the stream. But further, he has a right to the use of it for any purpose, or what may be deemed the extraordinary use of it, provided that he does not thereby interfere with the rights of other proprietors, either above or below him. Subject to this condition, he may dam up the stream for the purpose of a mill, or divert the water for the purpose of irrigation. But, he has no right to interrupt the regular flow of the stream, if he thereby interferes with the lawful use of the water by other proprietors, and inflicts upon them a sensible injury.(2)

1875: Swindon Waterworks v. Wilts and Berks Canal(3)

A waterworks company has no right to divert water from a stream in order to supply a nearby town.

The English Wilts and Berks Canal Company operated a navigation canal, which it supplied with water from Wroughton Stream, on which it owned property. In 1866, the Swindon Waterworks Company purchased land on a tributary of Wroughton Stream, there building a reservoir into which it diverted the tributary’s water, which it then supplied to the town of Swindon.

The canal company complained that the diversion diminished its water supply. In a year of drought, having had to refuse heavy barge traffic because of insufficient water in the canal, it filed a suit requesting an injunction. After being heard by two lower courts, the case went to the House of Lords. The law lords found that the canal company was entitled to the flow of Wroughton Stream and its tributaries; it forbade the waterworks company from diverting this flow into its reservoir.

Lord Cairns, in a decision that was said to have settled – indeed, almost codified – riparian law,(4) distinguished between ordinary uses, such as washing and drinking, and extraordinary uses. The latter, he said, were allowed only if connected with the riparian land. Since the waterworks company provided water to Swindon, it did not meet this criterion:

[T]his is not a user of the stream which could be called a reasonable user by the upper owner; it is a confiscation of the rights of the lower owner; it is an annihilation, so far as he is concerned, of that portion of the stream which is used for those purposes, and that is done, not for the sake of the tenement of the upper owner, but that the upper owner may make gains by alienating the water to other parties, who have no connection whatever with any part of the stream.(5)

Lord Cairns also noted that a riparian whose rights had been violated need not prove damages. Whether or not an injury had been sustained was “quite immaterial.” A lower riparian could protect his rights in order to prevent an upper riparian from obtaining a prescriptive right (a right to carry on longstanding activities) to an extraordinary water use.

1877: Pennington v. Brinsop Hall Coal(6)

A mill owner’s right to clean water takes precedence over keeping 500 people employed by a polluting colliery.

Richard Pennington and his son owned and operated a cotton mill beside Borsdane Brook, near Wigan, England. Water from the brook had supplied the mill for over 40 years when, in 1875, the Penningtons complained that the Brinsop Hall Coal Company, owner of a colliery located two and a half miles upstream, was pumping contaminated water from its mines into the brook. The water, impregnated with sulphuric acid, corroded the mill’s iron boilers and other machines, requiring the Penningtons to clean and repair them far more frequently than they had in the past. The Penningtons filed suit, requesting damages and an injunction.

The coal company urged the court to limit any decision against it to damages, explaining that an injunction would force it to shut the colliery (representing a £190,000 capital investment) and throw 500 men out of work. But the court refused to balance the economic and social costs of an injunction against the plaintiffs’ legal rights. In his decision, Mr. Justice Fry noted that he knew of no riparian case in which damages had been awarded in lieu of an injunction. He also explained that damages could compensate the Penningtons for past injuries only; future injuries, which would vary depending on unforeseeable uses, could not be estimated in advance. He forbade the pollution perpetually.(7)

1893: Young v. Bankier Distillery(8)

Miners have no right to alter the quality of a stream – not even to merely harden its still pure waters.

For 60 years, the Bankier Distillery Company, in the Scottish county of Sterling, operated beside a stream known as the Doups Burn, whose pure soft water perfectly suited the distillation of whiskey. Then John Young and Company, lessors of the upstream Banknock Colliery, started pumping water out of their coal mines and discharging it into the Doups Burn. The water, although pure and drinkable, was very hard, and rendered the stream unfit for the distillery’s use.

The proprietors of the Bankier Distillery sought an injunction and damages on the grounds that their riparian rights had been violated. In 1893, the House of Lords upheld a lower court’s judgment prohibiting the discharge of mine waters into the stream. As Lord Shand so succinctly said, “[T]he lower owner is entitled to have the water transmitted to him with its natural qualities unimpaired.”(9) Lord Macnaghten similarly explained that, subject to upper riparians’ ordinary and reasonable uses, a lower riparian is “entitled to the water of his stream, in its natural flow, without sensible diminution or increase and without sensible alteration in its character or quality. . . . [T]he appellants have no more right to pour into the burn foreign water which has the effect of changing its natural quality than they would have to put into it some chemical substance which would produce a similar alteration.”(10)

The law lords rejected the colliery’s argument that it could alter the quality of the stream as long as it didn’t affect ordinary (or primary) uses, such as drinking and washing. Lord Watson explained, “I am not satisfied that a riparian owner is entitled to use water for secondary purposes, except upon the condition that he shall return it to the stream practically undiminished in volume and with its natural qualities unimpaired. I am not satisfied that in returning the water in a state fit for primary uses he has any right to alter its natural character, and so make it unfit for uses to which it had been put, or might be put, by a riparian proprietor below.”(11) Lord Shand concurred: “I fully share the doubts which have been expressed as to the right of any upper proprietor so to use the water of a stream as to affect injuriously its natural quality as restored to the bed to the prejudice of the lower riparian owner, even though the water restored should be fit for ordinary domestic purposes.”(12)

That the mining company was using its property in a natural and proper way was irrelevant. As Lord Macnaghten noted, “[I]t is not permissible in such a case for a man to use his own property so as to injure the property of his neighbour.”(13)

1900: Weston Paper v. Pope(14)

In choosing a site, a paper mill underestimates its potential environmental effects at its own peril.

In 1894, the Weston Paper Company began manufacturing paper and other products from straw at its new mill near Greenfield, Indiana. It discharged its wastes into Brandywine Creek, which, three miles downstream, flowed through farmland belonging to Sarah Pope and others. These lower riparians had farmed and raised animals on their land for over 30 years, and had watered their livestock and fished for their dinners from Brandywine Creek. The new mill’s wastes obstructed and polluted the creek, killed fish, destroyed grass when the creek overflowed, and reduced the farmland’s value. The stench emanating from the wastes required the farmers to shut their doors and windows during hot weather, and caused much inconvenience and discomfort. The farmers went to court, where they obtained damages and an injunction restraining the discharge of the “putrescible and fermentable or otherwise deleterious waste.”(15)

In affirming the lower court’s decision to stop the pollution, the state Supreme Court refused to weigh the paper mill’s $90,000 construction costs against the plaintiffs’ material damages, which amounted to just $250. Judge Hadley noted that the creek’s condition constituted a nuisance which caused damages “immeasurable by a pecuniary standard.”(16) In this context, the size of the company’s investment was irrelevant:

The fact that [the] appellant has expended a large sum of money in the construction of its plant, and that it conducts its business in a careful manner and without malice, can make no difference in its rights to the stream. Before locating the plant the owners were bound to know that every riparian proprietor is entitled to have the waters of the stream that washes his land come to it without obstruction, diversion, or corruption, subject only to the reasonable use of the water, by those similarly entitled, for such domestic purposes as are inseparable from and necessary for the free use of their land; and they were bound, also, to know the character of their proposed business, and to take notice of the size, course, and capacity of the stream, and to determine for themselves, and at their own peril, whether they should be able to conduct their business upon a stream of the size and character of Brandywine creek without injury to their neighbors; and the magnitude of their investment and their freedom from malice furnish no reason why they should escape the consequences of their own folly.(17)

As no public necessity required the mill to operate at its chosen location, Judge Hadley, echoing Blackstone, concluded that the business could be “carried on elsewhere less injuriously to the rights of others.”(18)

The court similarly refused to consider the argument that the paper company had simply contributed to an already existing problem. That Greenfield’s sewage disposal practices bore some responsibility for the creek’s pollution was irrelevant. As Judge Hadley explained, “It is no defense that the city of Greenfield empties its sewage into the stream, whereby it is polluted. The fact that a water course is already contaminated from various causes does not entitle others to add thereto, nor preclude persons through whose land the water flows from obtaining relief by injunction against its further pollution.”(19)

1900: Strobel v. Kerr Salt(20)

The rights of small businessmen may take precedence over a region’s leading industry.

In 1886, the Kerr Salt Company founded a salt manufacturing business on Oatka Creek in western New York. It sunk seven 2,000-foot-deep wells into rock salt beds, into which it pumped 150,000 gallons of water daily. Bringing the brine to the surface, purifying the solution, and evaporating the water left the company with 860 barrels of pure white salt each day. But the process both depleted the creek’s flow and littered the land with salt, which then washed into the creek.

After six years, William Strobel and 13 other downstream riparians asked the court to restrain the salt company from diverting or polluting the creek. The plaintiffs had operated mills and factories downstream of the salt works for over half a century. Now, especially during the dry season, they lacked sufficient water to run their mills. Furthermore, the salty water, formerly pure, rusted boilers, machinery, and pipes. It killed fish and vegetation. Cows and horses refused to drink it.

The lower court dismissed the action, and the Appellate Division affirmed the judgment. Seven of the plaintiffs then appealed to the Court of Appeals of New York, which reversed the earlier judgments.

In delivering the opinion for the Court of Appeals, Judge Vann noted the tension between an upper riparian’s right to use water and a lower riparian’s right to receive water:

A riparian owner is entitled to a reasonable use of the water flowing by his premises in a natural stream . . . and to have it transmitted to him without sensible alteration in quality or unreasonable diminution in quantity. . . . As all other owners upon the same stream have the same right, the right of no one is absolute, but is qualified by the right of the others to have the stream substantially preserved in its natural size, flow, and purity, and to the protection against material diversion or pollution. This is the common right of all, which must not be interfered with by any. The use by each must . . . be consistent with the rights of the others, and the maxim of ‘Sic utere tuo’ observed by all.(21)

Reasonable use could not be strictly defined; it might include watering cattle, temporarily detaining water behind dams in order to run machinery, or irrigating land, and would vary depending on the stream, prescriptive rights, the damage done, and other local circumstances. But the Kerr Salt Company’s water use – new, extraordinary, and destructive – could not be considered reasonable.

The Kerr Salt Company claimed that manufacturing salt was a proper, necessary, and reasonable use of Oatka Creek’s water. Salt was the valley’s leading industry. Kerr alone employed more than 100 men and women. To shut it down – to say nothing of the dozen other salt mines on Oatka Creek that might be subject to similar actions – would harm the public interest. Although such arguments had persuaded the lower courts, the Court of Appeals disagreed. Judge Vann objected to the trial judge’s approving citation of a judgment regarding “‘a case in which the interest and convenience of the individual must give way to the general good.'” “This,” he warned, “would amount to a virtual confiscation of the property of small owners in the interest of a strong combination of capital.”(22) In defending individual rights against the interests of industry Judge Vann cited an early decision in Coal Co. v. Sanderson(23):

It was urged that the law should be adjusted to the exigencies of the great industrial interests of the commonwealth, and that the production of an indispensable mineral . . . should not be crippled and endangered by adopting a rule that would make colliers answerable in damages for corrupting a stream into which mine water would naturally run. . . . The consequences that would flow from the adoption of the doctrine contended for could be readily foretold. Relaxation of legal liabilities and remission of legal duties to meet the current needs of great business organizations, in one direction, would logically be followed by the same relaxation and remission, on the same grounds, in all other directions. One invasion of individual right would follow another, and it might be only a question of time when, under the operations of even a single colliery, a whole countryside would be depopulated.(24)

Judge Vann then launched into his own passionate defence of individual rights:

The lower riparian owners are entitled to a fair participation in the use of the water, and their rights cannot be cut down by the convenience or necessity of the defendant’s business. . . . While the courts will not overlook the needs of important manufacturing interests, nor hamper them for trifling causes, they will not permit substantial injury to neighboring property, with a small but long-established business, for the purpose of enabling a new and great industry to flourish. They will not change the law relating to the ownership and use of property in order to accommodate a great business enterprise. According to the old and familiar rule, every man must so use his own property as not to injure that of his neighbor; and the fact that he has invested much money and employs many men in carrying on a lawful and useful business upon his own land does not change the rule. . . .(25)

Lastly, Judge Vann addressed the fact that the dozen other salt works along Oatka Creek, similarly operated, also diminished and polluted the flow. Their contribution to the problem in no way diminished the Kerr Salt Company’s obligation; if anything, it enhanced it: “The fact that other salt manufacturers are doing the same thing as the defendant, instead of preventing relief, may require it. ‘Where there is a large number of persons mining on a small stream, if each should deteriorate the water a little, although the injury from the act of one might be small, the combined result of the acts of all might render the water utterly unfit for further use; and, if each could successfully defend an action on the ground that his act alone did not materially affect the water, the prior appropriator might be deprived of its use, and at the same time be without a remedy.'”(26)

1903: Warren v. Gloversville(27)

Neither the requirements of great industries nor a country’s need to develop its natural resources can justify violating a riparian’s rights.

John Warren owned a house and a meat market on land bordering the canal running through Johnstown, New York. The canal flowed from the Cayudetta Creek, which, four miles upstream, passed through the city of Gloversville. Gloversville had been discharging its 18,000 inhabitants’ sewage into the creek since 1890, rendering downstream waters “foul, noxious, and filthy” and permeating Mr. Warren’s buildings with “unwholesome, offensive, and deleterious odors arising therefrom.” Mr. Warren sued for damages and an injunction, receiving only the former from the trial court. He successfully appealed.

The Appellate Division’s Judge Chase explained that since Mr. Warren had suffered substantial damage, he was entitled to an injunction, regardless of its impact on the general good. (He then suspended the injunction, which prohibited the city from fouling Mr. Warren’s land, for one year and reserved the right to further postpone its operation if necessary.) In his defence of individual rights over those of municipalities or industries, the judge reviewed Strobel v. Kerr Salt and the nuisance case of Sammons v. Gloversville. He concluded:

An equity court is not bound to issue an injunction, when it will produce great public or private mischief, merely for the purpose of protecting a technical or unsubstantial right. . . . When, however, the damages are substantial, the fact that an injunction would interfere with great industries, the development of natural resources, or with the plans of a great city for drainage, is not a sufficient reason for relaxing the ordinary rules governing the rights of riparian owners of land. . . . Where wrongful interference with the waters of a stream causes substantial injury, an injunction to the person so substantially injured is a matter of right.(28)

1912: Crowther v. Cobourg(29)

A town may not discharge any sewage into a stream, even if it is odourless and apparently threatens no one’s health.

In the early part of this century, the town of Cobourg, Ontario, constructed a sewer that emptied into Factory Creek. The owners of a large hotel, the grounds of which Factory Creek crossed, objected that some of the nine houses served by the new sewer discharged human waste into it – waste that went untreated into the creek. They sued the town.

In its defence, Cobourg argued that the pollution from its sewer wasn’t serious as it neither smelled nor was likely to produce disease. Mr. Justice Middleton, who heard the case in the Ontario High Court, agreed that the creek was not “an offence to the eye or the nose” (although he cautioned that in the summer’s heat it could become annoying and dangerous, especially in the event of disease in one of the houses connected to the sewer). But the degree of dilution and the sewage’s innocuousness weren’t relevant issues, he concluded, for the town had “no right to pollute this stream in the smallest degree.”(30) In support of his position, the judge cited Young v. Bankier Distillery, which, he said, showed that “nuisance or no nuisance is not the question, but the right to the water in its natural condition.”(31) The judge therefore issued an injunction “restraining the defendants from in any way polluting the stream in question by discharging or permitting to be discharged through the drain in question any sewage or other foul or noxious matter.”(32)

In his decision, Mr. Justice Middleton defended individual rights over collective rights. The municipality had argued against an injunction on the ground that it would create a hardship for it. This, the judge noted, “ignores the fact that the plaintiff’s right to this stream is a property right, and the municipality have no right to take or destroy the property of an individual without compensation. Many an individual has had to suffer from a failure to recognise this elementary principle, and the only difference in the case of a municipality is, that it is given the power to expropriate.”(33)

Mr. Justice Middleton approvingly noted the respect paid to individual rights in the nuisance case, Attorney-General v. Corporation of Birmingham, along with the following passage from the decision in Roberts v. Gwyrfai District Council:

I know of no duty of the Court which it is more important to observe and no power of the Court which it is more important to enforce than its power of keeping public bodies within their rights. The moment public bodies exceed their rights, they do so to the injury and oppression of private individuals, and those persons are entitled to be protected from injury arising from the operations of public bodies.(34)

1913: Whalen v. Union Bag & Paper(35)

A pulp mill may not pollute already foul water.

Robert Whalen owned a 255-acre farm on Kayaderosseras Creek, near Albany, New York. A few miles upstream, the Union Bag & Paper Company operated its pulp mill, which represented an investment of over a million dollars and employed between 400 and 500 people. The mill’s sulphurous effluent and wood waste materials polluted Kayaderosseras Creek, interfering with Mr. Whalen’s use of his farm and diminishing its value. Mr. Whalen went to court, first obtaining an injunction (to be suspended for one year) against the pollution from the trial court, then losing it in the Appellate Division, and finally regaining it in the New York Court of Appeals.

In his dissenting opinion at the appellate level, Judge Betts objected to his colleagues’ having noted that since other industries also fouled Kayaderosseras Creek, enjoining Union Bag & Paper would not purify the water. It would be absurd to allow pollution on the grounds of other pollution, and prevent only contamination of pure water: “Of course, this provision substantially defeats itself, as the other wrongdoers if brought to court by plaintiff can point to this defendant (claimed to be the chief offender) and insist that while it, the defendant, is not restrained they should not be, so that this judgment, if it remain, renders plaintiff impotent to obtain an injunction against any defiler of this stream.”(36) He cited the decision in Sammons v. Gloversville to support his arguments on this subject.

Judge Betts also vigorously objected to his colleagues’ having balanced the burdens and benefits of an injunction. Citing Strobel v. Kerr Salt and Warren v. Gloversville, he explained, “It has always been the boast of equity that any substantial injustice might be corrected by it to even the humblest suitor, and that the financial size of such a suitor’s antagonist was not important.”(37)

In summary, Judge Betts protested that his colleagues had made “a new departure in riparian law,”(38) and recommended that the lower court’s decision to grant an injunction be affirmed.

Two years later, the Court of Appeals did indeed affirm the earlier injunction. In his judgment for the Court of Appeals, Justice Werner noted that the lower court had weighed the injunction’s great cost to the pulp mill against Mr. Whalen’s relatively small injury. In reinstating the injunction, Justice Werner maintained that such a balancing of injuries was unjustified: “Although the damage to the plaintiff may be slight as compared with the defendant’s expense of abating the condition, that is not a good reason for refusing an injunction. Neither courts of equity nor law can be guided by such a rule, for if followed to its logical conclusion it would deprive the poor litigant of his little property by giving it to those already rich.”(39)

Justice Werner referred to Pomeroy’s discussion of the injustice of substituting damages for an injunction. “[D]enying the injunction,” Pomeroy had said, “puts the hardship on the party in whose favor the legal right exists, instead of on the wrongdoer. . . . The weight of authority is against allowing a balancing of injury as a means of determining the propriety of issuing an injunction.”(40) Justice Werner also cited the decision in Weston Paper v. Pope as one that aptly expressed the rule to be applied to the case at hand.

1913: Nepisiquit Real Estate and Fishing v. Canadian Iron(41)

Downstream fishermen may prevent an iron mine from discolouring a river.

The Nepisiquit Real Estate and Fishing Company owned a number of lots along the last 20 miles of New Brunswick’s Nepisiquit River, where its members fished for salmon and trout. During the summer of 1912, the upstream Canadian Iron Corporation discoloured the river’s waters while grinding up and washing its iron ore – a process that caused leakage into one of the river’s tributaries.

The fishing company went to court, claiming that the pollution injured spawning grounds and practically destroyed its fishing privileges. The iron company denied the charges. But Mr. Justice McLeod had visited the site and seen the dirtied, muddied water. A riparian, he said (citing Young v. Bankier Distillery, among others), “has the right to the full flow of the water in its natural state, without any diminution or pollution.”(42) Clearly the iron mill had altered the Nepisiquit’s natural condition. <

The judge accordingly restrained the iron company from polluting the river. As a concession to the company’s importance, however, he allowed it a four-month grace period in which to make necessary changes.

1914: Watson v. Jackson(43)

A riparian may not divert water for use off riparian lands.

In the early part of this century, numerous dams and ponds could be found along Ontario’s Don River. Some were used to generate power, others ran mills, and others had fallen into disrepair. In 1912, W. H. Jackson acquired one of the latter – an old mill and tannery site that had been out of commission since a section of the dam had broken away 34 years earlier. He rebuilt the dam and created a pond to generate power and to supply the village of Thornhill and a nearby sanitarium with water.

Mr. Watson, who lived downstream, objected to any interference with the river’s flow. The Don, “a strong, live stream,” wound through his property; had it not been for the river, he would not have purchased that land. He went to court, seeking an injunction.

In his judgment for the Appellate Division of the Ontario Supreme Court, Mr. Justice Clute noted that extraordinary water uses must be connected with riparian land, a principle articulated by Lord Cairns in Swindon Waterworks v. Wilts and Berks Canal. To divert water off riparian land and to consume it for purposes unconnected with that land “would be, not only an unreasonable use of the water, but would be a use altogether outside and beyond the right of the riparian proprietor to use the water.”(44) The judge therefore forbade Mr. Jackson to divert the Don’s water to the sanitarium, Thornhill, or the surrounding country.

1918: Stollmeyer v. Trinidad Lake Petroleum(45)

An oil company may not divert or pollute a river, even if in so doing it harms no one.

Trinidad’s Vessigny River flowed through jungle lands owned by the Trinidad Lake Petroleum Company Limited. The company dammed the river and a tributary, creating two reservoirs that would provide its own petroleum fields with a plentiful and uniform water supply and enable it to pump water to its subsidiaries’ distant oil wells. In addition to diverting the river, the company polluted it by returning to it used, oil-impregnated water.

Charles Stollmeyer, who owned 100 acres of unused land at the river’s mouth, took his case against the upstream oil company through Trinidad’s court system and, ultimately, to the British Privy Council, which recognized his riparian right to the natural flow of the river.

In establishing a riparian’s right to an undiminished and unpolluted flow, the Privy Council’s Lord Sumner cited Lord Macnaghten’s judgement in Young v. Bankier Distillery. He proceeded to find that the oil company, first in filling its reservoir and then in sending water to other properties, sensibly diminished the river’s flow; it had no entitlement to do so. Nor had the company any entitlement to pollute the river. The fact that Mr. Stollmeyer had suffered no damages affected neither his rights nor the company’s obligations.

The oil company urged the court to spare it an injunction on the grounds that the injury to it and the local economy would outweigh the benefit to the plaintiff. That argument had convinced the Trinidadian trial judge, who had dismissed Mr. Stollmeyer’s action in part because it would harm the district’s only industry. But it didn’t sway the Privy Council. Lord Sumner explained:

There can be no doubt that if the respondents have caused such sensible diminution and this violated the appellants’ rights, they cannot excuse or defend their wrong by showing how disproportionate is the loss which they will suffer by being restrained to any loss which the appellants have suffered or are likely to suffer by their wrongful acts, or by dwelling on the general importance of the enterprises, which, if they cannot obtain a supply of water, must promptly come to an end. These considerations may be relevant to the form of remedy, especially to the time and opportunities which should be given them for finding some way out of their difficulty, but they cannot operate to deprive the appellants of their right to have their wrong redressed, if wrong has been done them.(46)

The court did indeed grant the oil company ample time to find a way out of its difficulty: it allowed it two years to implement necessary works, after which time Mr. Stollmeyer would be at liberty to apply for an injunction.

1928: Groat v. Edmonton(47)

A city’s environmental obligations limit its property rights.

A deep ravine traversed the Groats’ land in Edmonton, Alberta. Although the stream flowing through the ravine to the Saskatchewan River was once pure and healthy, and used for drinking and supplying livestock, it had become “grossly polluted.” The Groats blamed the pollution on several factors, including the construction of a large storm sewer which discharged surface water, horse droppings, street sweepings, and other filth from Edmonton’s streets into the ravine, especially in the spring, when the city flushed the winter’s accumulated filth from the sewer.

The Groats took legal action against Edmonton, which ultimately resulted in a 1928 Supreme Court of Canada ruling that the city had violated the Groats’ riparian rights, entitling them to damages and an injunction, which would take effect after two years, against continued nuisances.

Citing Young v. Bankier Distillery and Stollmeyer v. Trinidad Lake Petroleum, Mr. Justice Lamont explained that although the city, as an upper riparian, had the right to drain its land, it did not have the right to collect pollution in a sewer and then flush it into a stream. The city’s obligations restricted its rights: it could not discharge its filth onto neighbours’ lands. As Lord Lindley had said in Ballard v. Tomlinson:

Prima facie no man has a right to use his own land in such a way as to be a nuisance to his neighbour, and whether the nuisance is effected by sending filth on to his neighbour’s land, or by putting poisonous matter on his own land and allowing it to escape on his neighbour’s land, or whether the nuisance is effected by poisoning the air which his neighbour breathes, or the water which he drinks, appears to me wholly immaterial. If a man chooses to put filth on his own land he must take care not to let it escape on to his neighbour’s land.(48)

Several of the judges rejected Edmonton’s claim that it had statutory authority to pollute. According to Mr. Justice Rinfret, “So far as statutory powers are concerned, they should not be understood as authorizing the creation of a private nuisance – unless indeed the statute expressly so states.”(49) While the city charter provided for the construction and management of a sewer system, it did not expressly authorize pollution. Nor was pollution a necessary result of the works that had been approved; even the city engineer admitted that it could be prevented.

Mr. Justice Rinfret acknowledged that the city represented the collective rights of its ratepayers, who required sewers. “But these rights,” he explained, “are necessarily restricted by correlative obligations. Although held by the municipalities for the benefit of all the inhabitants, they must not – except upon the basis of due compensation – be exercised by them to the prejudice of an individual ratepayer.”(50)

The judge echoed the decision in the nuisance case of Attorney- General v. Birmingham: “But, whatever the consequences, and much as the result may cause inconvenience, the principle must be upheld that, unless Parliament otherwise decrees, ‘public works must be so executed as not to interfere with private rights of individuals.'”(51)

1953: Pride of Derby and Derbyshire Angling v. British Celanese(52)

A fishing club may save a river from upstream industries.

The waters of the River Derwent, in north-central England, flowed unpolluted until they reached the Borough of Derby’s sewer outfalls – one that discharged storm water overflow and untreated sewage during flood conditions and another that discharged inadequately treated effluent from the local sewage treatment works. The river then passed through land owned by British Celanese Ld., whose effluent polluted and warmed it. Downstream, discharge from the British Electricity Authority’s power station further increased the river’s temperature.

Because the changes in water quality and temperature killed the river’s fish and their food supply, the Pride of Derby and Derbyshire Angling Association Ld., a fishing club that owned a fishery in the Derwent, and the Earl of Harrington, who owned land along the river, took the three upstream polluters to court. In 1952, the court issued an injunction restraining the defendants from altering the river’s quality or temperature or interfering with the plaintiffs’ enjoyment of their fishing rights; it then suspended the injunction’s operation for two years. The Chancery Division, upon appeal by two of the defendants, confirmed the decision.

Master-of-the-Rolls Evershed rejected the Borough of Derby’s argument that it had statutory authority to pollute. For that defence to work, he explained, the nuisance would have to be expressly authorized by an act of Parliament or, alternatively, be the inevitable consequence of that which an act did authorize. While the 1901 Derby Corporation Act had established sewage disposal works, it had not authorized pumping untreated sewage into the river. In fact, it had specifically prohibited nuisances: “The sewage disposal works constructed . . . shall at all times hereafter be conducted so that the same shall not be a nuisance and in particular the corporation shall not allow any noxious or offensive effluvia to escape therefrom or do or permit or suffer any other act which shall be a nuisance or injurious to the health or reasonable comfort of the inhabitants of Spondon. . . .”(53) The language, Master Evershed concluded, seemed “almost too plain for argument”; the act did not exempt Derby from liability.

The Borough of Derby also argued that when it had built its sewage system at the turn of the century it had been sufficient for the local population. Subsequent population growth – a circumstance beyond its control – rendered it inadequate. Lord Justice Denning protested that if local authorities, under the Planning Acts, have control over development in their district, they should be responsible for its consequences: “They know (or ought to know) that the increase in building will cause the existing sewers to overflow, and yet they allow it to go on without enlarging the capacity of the sewerage system. By so doing, they themselves are helping to fill the system beyond its capacity, and are guilty of nuisance.(54) The Borough of Derby urged the court to substitute damages for an injunction. Damages would be a sufficient remedy. And an injunction, it maintained, would be improper. It could not simply rebuild its sewage system at will; it needed a licence, and, in order to borrow money, the consent of the Minister of Local Government and Planning.

But awarding damages, Master Evershed noted, would require the plaintiffs to return to the courts again and again – an extremely costly process. Furthermore, an injunction was not purely discretionary:

It is, I think, well settled that if A proves that his proprietary rights are being wrongfully interfered with by B, and that B intends to continue his wrong, then A is prima facie entitled to an injunction, and he will be deprived of that remedy only if special circumstances exist, including the circumstance that damages are an adequate remedy for the wrong that he has suffered. In the present case it is plain that damages would be a wholly inadequate remedy for the first-named plaintiffs, who have not been incorporated in order to fish for monthly sums.(55)

Lord Justice Romer agreed: “Anyone who creates an actionable nuisance is a wrongdoer, and the court will prima facie restrain him from persisting in his activities.”(56)

1967: Rugby v. Walters(57)

Spray irrigation, being evaporative, is not an acceptable riparian water use.

John Walters owned a 200-acre farm on the south bank of the River Avon near Rugby, England. In 1959 he installed and began using a spray irrigation system, drawing water sometimes from the river, and other times from a reservoir on his property. Some summer days he would spray his crops with up to 60,000 gallons, most of which evaporated instead of returning to the river. Despite its large volume, Mr. Walters’ water use had no visible or measurable effect on the river; while it peaked at 10.8 per cent of the daily flow, it usually comprised less than 1 per cent of the monthly flow.

The Rugby Joint Water Board objected to Mr. Walters’ spraying operations. The Avon was Rugby’s principal source of water supply and the board, as a riparian owner, was entitled to receive the river’s full flow downstream of Mr. Walter’s farm. The board filed suit in 1964.

In his 1966 judgment, Mr. Justice Buckley reviewed many familiar cases (including Miner v. Gilmour, Swindon Waterworks v. Wilts & Berks Canal, and Young v. Bankier Distillery) and concluded that “a riparian owner is not entitled to take water from a stream for extraordinary purposes without returning it to the stream substantially undiminished in quantity.”(58) Withdrawing water from the Avon for large-scale spray irrigation could not qualify as an ordinary water use; nor would it be a justifiable extraordinary use, since the water would not return to the stream.(59) The judge therefore forbade Mr. Walters from withdrawing water from the river for that purpose.

1970: Gauthier v. Naneff(60)

A charity’s honourable intentions cannot justify possible pollution.

In April 1970, the Parks and Recreation Commission, in Sudbury, Ontario, approved the use of Bell Park for the Ontario Outboard Championships – a speed boat regatta to be held on Lake Ramsay in September by the Sudbury Rotary Club.

In August, Hazen Gauthier learned of the proposed races from an article in the Sudbury Star. He worried that the 60 motorboats competing in the regatta would contaminate Lake Ramsay, Sudbury’s principal source of water. After trying unsuccessfully to persuade the Rotary Club to abandon its plans, he asked the Ontario Water Resources Commission to intervene on his behalf. Ontario’s Minister of Energy and Resources Management refused, explaining that “the local authorities had made the decision to hold the regatta and no interference by the Commission seemed warranted.”(61)

Mr. Gauthier, along with three other Sudbury residents, then launched an action for a restraining order. One of the plaintiffs, Rita Glenn Dixon, owned land on Lake Ramsay. Citing Ms. Dixon’s riparian rights, Judge Dunlap issued an injunction prohibiting the planned races.

In his decision, Judge Dunlap relied on Chief Justice McRuer’s judgment in McKie v. K.V.P. (see Chapter Four), along with its numerous historical references. He concluded that Ms. Dixon’s riparian rights entitled her “to the flow of water through or by her land in its natural state.”(62) Were the planned races to proceed, there would be “a reasonable apprehension of the impairment to some degree” of Ms. Dixon’s rights.(63) In such cases, as Lord Kingsdown had stated in the nuisance case, Imperial Gas Light & Coke v. Broadbent, injunctions should be granted as a matter of course.

Explaining that Ms. Dixon need not prove damages to obtain an injunction, Judge Dunlap cited Kerr on Injunctions:

Where a defendant claims the right to use the water of a stream in [an] unreasonable manner, it is not necessary for the plaintiff to show that he has sustained actual injury in order to obtain an injunction. . . . A riparian owner is entitled to the flow of water past his land, in its natural state of purity undeteriorated by noxious matter discharged into it by others, and anyone 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. . . . In the case of injury to riparian rights from the pollution of water, the Court does not, except in special cases, award damages in lieu of an injunction.(64)

Judge Dunlap refused to consider the motives of the defendants or the impact that an injunction would have upon them:

It is trite law that economic necessities of the defendants are irrelevant in a case of this character. It is unfortunate that in the circumstances of this case the rights of a riparian land proprietor come into conflict with the laudable objects of a charitable pursuit formulated and prosecuted with sincerity and dedication. . . . None the less, the most honourable of intentions alone at no time can justify the expropriation of common law rights of riparian owners. . . .

It was urged upon me by counsel for the defendants that the financial commitments of the defendants were such as to tilt the scales of convenience in support of the rejection of this application. While I am in sympathy with this submission for the reason already expressed, I cannot yield to same in violation of the rights already acknowledged.(65)

Notes

1. Miner v. Gilmour (1858), 12 Moo. P.C. 131, 14 E.R. 861.

2. Ibid. at 870.

3. The Directors, etc. of the Swindon Waterworks Company Limited v. The Proprietors of the Wilts and Berks Canal Navigation Company (1875), L.R. 7 H.L. 697.

4. Lord Halsbury, in McCartney v. Londonderry & Lough Swilly Railway Co. Ltd., [1904] A.C. 301 (H.L.).

5. Swindon Waterworks v. Wilts and Berks, op. cit. at 705.

6. Pennington v. Brinsop Hall Coal Company (1877), 5 Ch. D. 769.

7. The judge awarded “a perpetual injunction . . . to restrain the Defendants from discharging water from their mines and colliery into the stream so as to cause an injury to the Plaintiffs’ mill, engine, boilers, and works . . . or so as to cause the stream to flow to the Plaintiffs’ mill and premises in a state less pure than that in which it flowed thither previously to the commencement of the Defendants’ pumping.” He suspended the injunction for three months (Ibid. at 774).

8. John Young and Company v. The Bankier Distillery Company and Others, [1893] A.C. 691 (H.L.).

9. Ibid. at 700.

10. Ibid. at 698-9.

11. Ibid. at 696.

12. Ibid. at 700.

13. Ibid. at 699.

14. Weston Paper Co. v. Pope et al., 155 Ind. 394, 57 N.E. 719, 56 L.R.A. 899 (1900).

15. Ibid. at 720.

16. Ibid. at 720.

17. Ibid. at 721.

18. Ibid. at 721.

19. Ibid. at 721.

20. Strobel et al. v. Kerr Salt Co., 164 N.Y. 303, 320, 58 N.E. 142, 147, 51 L.R.A. 687, 79 Am. St. Rep. 643 (N.Y. Ct. App. 1900).

21. Ibid. at 147.

22. Ibid. at 145.

23. 1878 trial decision, overturned in 113 Pa. St. 126, 6 Atl. 453 (1886).

24. Cited in Strobel et al. v. Kerr Salt Co., op. cit. at 146. Judge Vann acknowledged that a higher court had, in the name of the community interest in natural resource development, overturned this decision, but noted that “[c]ourts of the highest standing have refused to follow the Sanderson Case” and that “its doctrine was finally limited by the court which announced it” (at 147).

25. Ibid. at 147-8.

26. Ibid. at 148, citing Hill v. Smith, 32 Cal. 166.

27. Warren v. City of Gloversville, 81 App. Div., 291, 293, 80 N.Y. Supp. 912, 913 (N.Y. Ct. App. 1903).

28. Ibid. at 913-4.

29. Crowther v. Town of Cobourg (1912), 1 D.L.R. 40 (Ont. H.C.).

30. Ibid. at 42.

31. Ibid. at 42.

32. Ibid. at 43.

33. Ibid. at 42.

34. Ibid. at 43, citing Roberts v. Gwyrfai District Council, [1899] 2 Ch. D. 608.

35. Whalen v. Union Bag & Paper Co. First appeal: 145 App. Div. 1, 129 N.Y. Supp. 391, (1911); Second appeal: 208 N.Y. 1, 5, 101 N.E. 805, 806, (N.Y. Ct. App. 1913).

36. Ibid. at 393.

37. Ibid. at 393.

38. Ibid. at 395.

39. 101 N.E. 806.

40. Ibid. at 806, citing Eq. Juris. Volume 5.

41. Nepisiquit Real Estate and Fishing Company, Limited v. Canadian Iron Corporation, Limited (1913), 42 N.B.R. 387 (Ch.D.).

42. Ibid. at 392.

43. Watson v. Jackson (1914), 19 D.L.R. 733 (Ont. S.C.).

44. Ibid. at 745.

45. Stollmeyer and Others v. Trinidad Lake Petroleum Company Limited, and Others, [1918] A.C. 485 (P.C.).

46. Ibid. at 494.

47. Malcolm Forbes Groat and Walter S. Groat v. The Mayor, Aldermen and Burgesses, being the Corporation of the City of Edmonton, [1928] S.C.R. 522.

48. Ibid. at 537-8, citing Ballard v. Tomlinson (1885), 29 Ch. D. 115 at 126.

49. Ibid. at 533.

50. Ibid. at 533.

51. Ibid. at 534.

52. Pride of Derby and Derbyshire Angling Association Ld. and Another v. British Celanese Ld. and Others, [1953] 1 Ch. 149.

53. Ibid. at 164.

54. Ibid. at 190.

55. Ibid. at 181.

56. Ibid. at 194.

57. Rugby Joint Water Board v. Walters, [1967] 1 Ch. 397.

58. Ibid. at 422.

59. It is interesting to compare this case with Embrey and Another v. Owen, in which conventional irrigation that neither perceptibly dimin-ished the stream nor impeded the operation of downstream mills was deemed to be a reasonable water use (1851), 6 Exch. 353, 155 E.R. 586.

60. Gauthier et al. v. Naneff et al. (1970), [1971] 1 O.R. 97 (H.C.J.).

61. Ibid. at 99.

62. Ibid. at 101.

63. Ibid. at 103.

64. Ibid. at 101-2, citing 6th ed., pp. 216-8 and 239-40.

65. Ibid. at 103.

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