Chapter 3: Without Obstruction, Diversion or Corruption

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“It is a nuisance to stop or divert water that used to run to another’s meadow or mill; to corrupt or poison a water-course, by erecting a dye-house or a lime-pit, for the use of trade, in the upper part of the stream; … or in short to do any act in common property, that in its consequences must necessarily tend to the prejudice of one’s neighbour. So closely does the law of England enforce that excellent rule of gospel-morality, of ‘doing to others, as we would they should do unto ourselves.'”

— Sir William Blackstone, 1768(1)

Hazen Gauthier read the news in the local paper: Sudbury’s Parks and Recreation Commission had approved the use of Bell Park for the 1970 Ontario Outboard Championships. The speed boat regatta, sponsored by the Rotary Club, was to be held on Lake Ramsay – Sudbury’s principal source of water.

Mr. Gauthier, concerned that the 60 hydroplane motorboats competing in the regatta would contaminate the small lake, knew he had to act quickly. The races were scheduled for September 12th and 13th – just a month away. On August 14th he had his lawyer contact the Rotary Club, which refused his request to cancel the event. Four days later his lawyer asked the Ontario Water Resources Commission to intervene. But Ontario’s Minister of Energy and Resources Management turned down the request, explaining that “the local authorities had made the decision to hold the regatta and no interference by the Commission seemed warranted.”(2)

On September 4th, Mr. Gauthier, along with three other Sudbury residents, launched a court action for a restraining order. Six days later, Judge Frank Dunlap forbade the Rotary Club to hold speed boat races on Lake Ramsay.

Judge Dunlap based his decision on a branch of the common law called riparian law. Under the common law, riparians – people who own or occupy land beside lakes and rivers – have the right to the natural flow of water beside or through their property, unchanged in quantity or quality.(3) One of the plaintiffs, Rita Dixon, owned land on Lake Ramsay. It was to protect her riparian rights that the judge issued the injunction.

Mrs. Dixon’s riparian rights, Judge Dunlap explained, entitled her “to the flow of water through or by her land in its natural state.”(4) By polluting Lake Ramsay – regardless of whether the pollution caused any harm – the planned races would violate Mrs. Dixon’s property rights. In such a case, said the judge, the court should grant an injunction as a matter of course.

In his decision, Judge Dunlap reviewed riparian cases from 1859 to 1949, a period when riparian rights played a crucial role in cleaning up lakes and rivers. During those years, riparians – including farmers, mill-owners, manufacturers, absentee landlords, fishermen, and titled aristocrats – exercised their legal rights to protect themselves and the environment from coal mine discharges, pulp and paper mill wastes, sanitary sewage, storm-water runoff, salt, oil and other pollutants.(5)

Riparian rights evolved from nuisance law.(6) Many early nuisance cases concerned water pollution; neighbours would counter tanners or butchers who disposed of their wastes in rivers, or the owners of privies that hung over streams. The industrial revolution and the introduction of piped municipal sewage systems changed the scope of the water pollution problem and the law surrounding it. Mills and factories were dumping their noxious wastes into Britain’s rivers, causing an unprecedented and dramatic deterioration of water quality across the country.(7) People fought back, taking their cases to the courts, which gradually honed the law into a finely-tuned system of rights and responsibilities. By the 1850s, when the courts were awash in water pollution cases, the riparian doctrine had emerged as a powerful weapon against the era’s severe environmental challenges.(8)

Waterfront property owners, businesses, and others dependent on lakes and rivers fought industrial and municipal water pollution with riparian law throughout much of the English- speaking world during the following century, and in some places continue to do so. In Great Britain, for example, the Anglers’ Co-operative Association fights pollution by defending riparian rights in county courts. The Association has won all but two of the hundreds of cases it has argued since its founding in 1948.(9)

In Canada, riparian law originally applied everywhere except Quebec, where similar civil law rules held.(10) But like other common law doctrines, riparian law survives only where politicians or bureaucrats haven’t extinguished it through statutes and regulations. Riparian rights remain strongest in Atlantic Canada and Ontario.(11) In the Western provinces, where riparian law would have impeded mining and irrigation, statutes have governed water allocation since the late nineteenth century; even there, however, riparians may retain rights to clean water.(12) For various reasons, including the financial risks entailed in court cases and the courts’ frequent reluctance to frustrate industry, Canadians now rarely enforce their riparian rights.(13) But when they do, as evidenced by Hazen Gauthier’s challenge to the Sudbury Rotary Club, riparian rights remain powerful tools for environmental protection.(14)

The common law allows riparians to use an unlimited amount of water for “ordinary” purposes, which traditionally included only domestic and subsistence agricultural activities.(15) In most jurisdictions, they may use additional water for certain reasonable “extraordinary” purposes, such as irrigation or manufacturing, connected with their property.(16)

Riparians do not have a right to divert water for use off their property. In 1875, the House of Lords (Britain’s ultimate judicial appeal court) forbade a waterworks company from diverting a stream in order to supply the English town of Swindon.(17) A diversion of such magnitude would not qualify as an ordinary, reasonable use, the law lords explained; and extraordinary uses were allowed only if connected with riparian land. Almost 40 years later an Ontario court, preventing an entrepreneur from providing the village of Thornhill with water from the Don River, echoed the law lords’ decision: to divert water from 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.”(18)

A riparian’s right to use water confers no right to abuse it. Extraordinary water users may not interfere with other riparians’ property rights: they must return the water to the watercourse substantially undiminished in volume and unaltered in quality. As early as 1858 the courts determined that a tanner in Lower Canada must not block the River Yamaska’s flow to a downstream mill; they found that the tanner had the right to hold back water to propel his tannery’s wheels and machinery – an extraordinary use – only if “he does not thereby interfere with the rights of other proprietors.”(19) Similarly, in deciding an 1893 case against a Scottish mining company, one British law lord noted, “I am not satisfied that a riparian owner is entitled to use water for secondary [i.e., extraordinary] purposes, except upon the condition that he shall return it to the stream practically undiminished in volume and with its natural qualities unimpaired.”(20) His colleague added, “it is not permissible in such a case for a man to use his own property so as to injure the property of his neighbour.”(21)

Riparian law is extraordinarily potent, prohibiting any sensible change in the water’s quality. In the Scottish case noted above, a distiller obtained an injunction preventing an upstream coal mine from discharging hard water into a stream; while still pure and drinkable, the stream was no longer fit for the manufacture of whiskey. Twenty years later, a New Brunswick court ruled against an iron company whose operations discoloured the Nepisiquit River.(22) More recently, in the 1950s, at the behest of a fishing club and a local landowner, a British court restrained upstream industries whose thermal pollution killed fish.(23)

Riparians can sue polluters to protect their rights even if they have suffered no evident harm; once interference with a riparian right is established, damage is presumed.(24) In fact, as Hazen Gauthier so aptly demonstrated, riparians who can demonstrate that a proposed activity will likely violate their rights may act even before a stream has been polluted or diverted. Riparians’ rights to unaltered water exist whether or not they use the water, and whether or not its alteration interferes with any of their activities. That a Trinidadian land owner in one 1918 case put to no use whatsoever either the river flowing through his property or the property itself didn’t prevent the court from recognizing his right to the natural flow of the river.(25) The law thus enables riparians to prevent polluters from establishing the right to carry on longstanding activities (called a “prescriptive right”) that might interfere with future water uses.

As with nuisance law, existing water pollution does not justify further pollution. Courts have not cared that, because a dozen other industries polluted a river, restraining one would not restore the water’s purity. If every polluter could defend himself on the ground of existing pollution, the reasoning goes, riparians could never repair the environment.

The issue arose in an early twentieth-century case against a New York salt manufacturer accused of depleting a creek’s flow and contaminating it with salt. The company tried to defend itself on the grounds that a dozen other salt works also diminished and polluted the creek. The judge, however, found that others’ contribution to the problem in no way lessened the defendant’s obligation; if anything, it increased it. “The fact that other salt manufacturers are doing the same thing as the defendant, instead of preventing relief, may require it,” the judge explained. He then cited an earlier decision on the matter:

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)

Nor, under traditional riparian law, may polluters violate an individual’s rights in order to promote a greater good, be it private or public. Although no longer always the case, courts long refused to consider the economic or social costs of prohibiting pollution; they ruled against companies that had invested considerable capital in their works, those that employed hundreds of people, and those representing a region’s leading – sometimes only – industries. Municipalities frequently failed to convince the courts to allow polluting sewage disposal systems in the name of the greater good. The courts, however, generally made one concession to the public interest: they delayed injunctions in order to give industrial and municipal polluters time to clean up.

A case in 1900 against a paper mill whose wastes polluted a creek illustrates the courts’ traditional refusal to balance private economic factors when choosing a remedy. In issuing an injunction against further pollution, the Indiana court refused to weigh the paper mill’s $90,000 construction costs against the plaintiffs’ material damages, which amounted to just $250. The court noted that the creek’s condition constituted a nuisance which caused damages “immeasurable by a pecuniary standard.” 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.(27)

A dozen years later, in a similar New York case, a judge who refused to consider the financial burdens an injunction would place upon a pulp mill 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.”(28) The Court of Appeals later confirmed that balancing an injunction’s great cost to the pulp mill against the plaintiff’s relatively small injury would be 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.”(29)

In fact, the courts’ refusal to consider an injunction’s economic impact on a defendant remained so common that, according to the judge in Hazen Gauthier’s case against the Rotary Club, “It is trite law that economic necessities of the defendants are irrelevant in a case of this character.”(30)

So, too, have courts refused to consider the public costs of their injunctions. In rejecting the public good as a justification for pollution, judges have frequently soared to inspiring rhetorical heights. Behind the rhetoric have been some of the most powerful environmental protection decisions in common law history.

In the New York salt case previously discussed, the manufacturer tried to defend its polluting ways in the name of the public good. Salt manufacturing, it averred, was the region’s leading industry. The defendant alone employed more than 100 men and women. To shut it down – to say nothing of the dozen other salt mines that might be subject to similar actions – would harm the public interest. But the Court of Appeal judge objected. Requiring the interest and convenience of the individual to give way to the general good, he warned, “would amount to a virtual confiscation of the property of small owners in the interest of a strong combination of capital.”(31)

In defending individual rights against the interests of industry the judge cited an early coal mining decision:

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.(32)

The judge 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. . . .(33)

Some contemporary courts continue to uphold the tradition of placing individual rights before the public good. When considering Hazen Gauthier’s bid to save Lake Ramsay, Judge Dunlap refused to allow his respect for the Rotary Club’s mission – to raise money for its work with crippled children – to influence his decision.(34) “It is unfortunate,” he said, “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.”(35)

In the absence of a specific law to the contrary, even government itself cannot justify violating people’s property rights to clean water in the name of the public good. As one judge explained at the end of the nineteenth century:

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.(36)

Similarly, in his decision on a 1928 challenge to the storm sewage disposal practices of Edmonton, Alberta, a Supreme Court judge 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.”(37) The judge echoed the decision from an early sewage disposal case: “[W]hatever 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.'”(38)

Riparian rights, protecting lakes and rivers from obstruction, diversion, and corruption, complete the trio of property rights most commonly used in the defence of nature. Together, trespass, nuisance and riparian rights have effectively empowered people to preserve or restore clean land, air and water – too effectively, apparently, for governments, which have worked assiduously to undermine property rights and the environmental protection they have fostered.

Notes

1. Blackstone, Commentaries on the Laws of England, Volume 3, 191-2.

2. Gauthier et al. v. Naneff et al. (1970), [1971] 1 O.R. 97 at 99 (H.C.J.).

3. Legal scholars disagree about who has riparian rights. According to Rueggeberg and Thompson, riparian rights “belong only to those who own the banks of rivers, lakes or other bodies of water” (Water Law and Policy Issues in Canada, 4). Similarly, Percy explains that “the riparian doctrine restricts water rights to those who own property that adjoins a body of water” (The Framework of Water Rights Legislation in Canada, 73).

Others define riparians more broadly. According to McNeil and Macklem, “Every person who is in lawful possession of land adjacent to water, whether as a freeholder, leaseholder or in some other capacity, has riparian rights” (Aboriginal, Treaty and Riparian Rights in the Moose River Basin, 1).

Campbell et al. straddle the issue, suggesting first that the riparian “doctrine provides occupiers of land bordering a natural stream (riparian land) with certain rights to the use and flow of water” but later mentioning “rights which are incidental to the ownership of land” (“Water Management in Ontario,” 479, 480).

4. Gauthier v. Naneff, op. cit. at 101.

5. See Appendix C for riparian rights case summaries.

6. The roots of riparian law can be traced back even further. According to Chief Justice McRuer, “The origin of the common law applicable to this subject goes back to and beyond Roman law” (McKie et al. v. The K.V.P. Co. Ltd., [1948] 3 D.L.R. 201 at 209).

The discussion in this paragraph is based in part on Harvey, “Riparian Water Rights.”

7. McLaren, “Nuisance Law and the Industrial Revolution,” 323-4.

8. By the 1850s, while some justices still referred to nuisance law in their decisions in water pollution cases, the riparian doctrine as we know it was “clear and settled” (Embrey and Another v. Owen (1851), 6 Exch. 353, 155 E.R. 586). Also see Wood and Another v. Waud and Others (1849), 3 Exch. 748, 154 E.R. 1047, an early case in which the court distinguished between ordinary and extraordinary water uses.

9. Anglers’ Co-operative Association, ACA Review; and personal communication with Anglers’ Co-operative Association staffer, June 16, 1994.

For a description of the Association and its goals, membership, and strategies, see Martell and Others v. Consett Iron Co. Ld. (1954), [1955] 1 Ch. 363.

The Association is discussed at greater length in Chapter 13.

10. In Miner v. Gilmour (1858), 12 Moo. P.C. 131, 14 E.R. 861 at 870, the Privy Council’s Lord Kingsdown noted, “it did not appear that, for the purposes of this [riparian] case, any material distinction exists between the French and the English law.” Also see Percy, op. cit., 72; Rueggeberg and Thompson, op. cit., 5; and Canadian Environmental Law Research Foundation, “An Overview of Canadian Law and Policy Governing Great Lakes Water Quantity Management,” 199-20.

11. According to Percy, “Riparian rights remain the basis of water allocation in Ontario and the Atlantic provinces” (op. cit., 72). Similarly, Lucas explains that in Ontario, riparian laws “continue to govern the legal character of water rights” (Security of Title in Canadian Water Rights, 20). And McNeil and Macklem note that the doctrine remains valid on Indian reserves, where provincial legislation cannot override it (op. cit., 7).

12. According to Harvey, “the riparian right to unpolluted water is alive and well” (op. cit., 523). Also see Percy, op. cit., 19.

13. Percy notes that “despite their undoubted existence, [riparian rights] are rarely enforced” (op. cit., 75). According to Sharpe, there have been few reported Ontario riparian cases in the last three decades (Injunctions and Specific Performance, 197-8). And the Canadian Environmental Law Research Foundation suggests that the doctrine will now be used only in the most extraordinary cases (op. cit., 112).

14. According to Rueggeberg and Thompson, “Many lawyers believe . . . that in the interests of water quality, the riparian owner’s right to sue for injury where an upstream user might be discharging harmful contaminants is still a powerful means of preserving high quality conditions” (op. cit., 6).

15. More recently, courts have stretched the meaning of ordinary to encompass waterpower, provided that the power is used on the riparian land, or even, in some industrial areas, manufacturing. See McNeil and Macklem, op. cit., 2, and Campbell et al., op. cit., 481.

16. In the 1891 case, Ellis v. Clemens, Mr. Justice Street suggested that “the general rule which I gather from the cases is that any user which inflicts positive, repeated, and sensible injury upon a proprietor above or below is not to be considered a reasonable user” (21 O.R. 227 at 230).

17. 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.

18. Watson v. Jackson (1914), 19 D.L.R. 733 at 745 (Ont. S.C.).

19. Miner v. Gilmour, op. cit. at 870.

20. John Young and Company v. The Bankier Distillery Company and Others, [1893] A.C. 691 at 696 (P.C).

21. Ibid. at 699.

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

23. Pride of Derby and Derbyshire Angling Association Ld. and Another v. British Celanese Ld. and Another (1952), [1953] 1 Ch. 149 (C.A.). This case is discussed at length in Chapter 13.

24. See, for example, McKie et al. v. The K.V.P. Co. Ltd., op. cit. at 216. Also see Canadian Environmental Law Research Foundation, op. cit., 113; Estrin and Swaigen, Environment on Trial, 115; and Campbell et al., op. cit., 503.

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

26. Strobel et al. v. Kerr Salt Co., 164 N.Y. 303, 320, 58 N.E. 142 at 148, 51 L.R.A. 687, 79 Am. St. Rep. 643 (N.Y. Ct. App. 1900) citing Hill v. Smith, 32 Cal. 166.

27. Weston Paper Co. v. Pope et al., 155 Ind. 394, 57 N.E. 719 at 721, 56 L.R.A. 899 (1900).

28. Whalen v. Union Bag & Paper Co. First appeal: 145 App. Div. 1, 129 N.Y. Supp. 391 at 393 (1911).

29. Whalen v. Union Bag & Paper Co. Second appeal: 208 N.Y. 1, 5, 101 N.E. 805 at 806 (1913).

30. Gauthier v. Naneff, op. cit. at 103.

31. Strobel et al. v. Kerr Salt Co., op. cit. at 145.

32. Ibid. at 146, citing Coal Co. v. Sanderson, 1878 trial decision, subsequently considered in 113 Pa. St. 126, 6 Atl. 453 (1886). 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 “Courts 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).

33. Ibid. at 147-8.

34. During the hearing the judge noted, “My sympathy is with what the Sudbury Rotary Club is doing, but I must confine my interpretation to legal grounds.” Sudbury Star, September 10, 1970.

35. Gauthier v. Naneff, op. cit. at 103.

36. Roberts v. Gwyrfai District Council, [1899] 2 Ch. D. 608.

37. 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 at 533.

38. Ibid. at 534, citing Attorney General v. Birmingham.

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