Jessup & Moore Paper Co. v. Ford

It appears from the affidavits filed in the cause that the defendants have erected, and since *68the filing of "this bill have begun to operate, an extensive morocco manufactory at Second and Webb streets, in the city of Wilmington, on the banks of a small stream called Silver Brook, which from that point flows a distance of about 6100 feet until it empties into Mill Creek. Mill Creek, from the point where Silver Brook empties into it, flows a distance of about 10,400 feet, until it empties into the Christiana River, at said mills of the complainant.

The complainant contends that the discoloration of the waters of Mill Creek, and also the dye stuffs and impure .substances contained in the refuse matter discharged from .said factory, will render the water of said Mill Creek totally unfit for use in the complainant’s pulp works; that the lime and lime-water would kill the “bleach,” a part ■of the process in manufacturing wood pulp, by neutralizing the chlorine;" and that loose hair passing down said .stream would mingle with the paper pulp and paper, and render it unsalable; and that the necessary result of the ■operation of the morocco factory by the defendants, and the discharge into said stream of the said refuse matter, will be the stoppage of the said pulp works, thus depriving the other mills of the complainant of their supply, from the said pulp works, of the material necessary for the manufacture of paper, causing it loss of trade and great .and irreparable damage.

I have given careful attention to the contents of the .affidavits filed in support both of the bill and answer; .and while giving, due credit to all the witnesses, both of the complainant and the defendants, the best judgment which I am able to form in respect to their statements is that the discharge of the refuse matter from said morocco factory in the said Silver Brook, the waters of which would necessarily flow into and mingle with the waters of Mill Creek, would be perilous to the business *69of the complainant, as set forth and described in its bill of complaint. Since the defendants have commenced operating their factory, they seem to have run the refuse and polluted waters into ponds dammed off near their factory and adjoining Silver Brook.

These ponds have several times broken the dams, and the contents thereof have been discharged into Silver Brook, the water of which has been blackened and discolored all the way from said factory to Mill Creek, and also the waters of Mill Creek'have been blackened and polluted for a considerable distance below said factory. The small fish in said Silver Brook have been killed by the pollution of the waters thereof; the water has been made unfit for the use of cattle for days after such discharge ; the bottom of the stream has been blackened by sediment, and black scum in some places has covered the water; this discoloration of the water extended a considerable way into Mill Creek.

The superintendent and assistant superintendent of the pulp works swear that the waters at Mill Creek have not been so pure as usual, and larger quantities of bleaching matter have had to be used to counteract the effect of the pollution caused by a few discharges of this morocco refuse ; they say that they cannot account for this change in the water in any other way.

Without attempting a reference to all the statements, contained in the affidavits in support of the bill and answer,—for a great many affidavits have been put in,—it is sufficient to say that, in my judgment, it is reasonable to believe that the continued discharges of the refuse matter from said factory into Silver Brook, and thence into Mill Creek, will work serious injury and damage to. the business of the complainant, and ail others who are compelled to rely on the waters of Silver Brook and Mill Creek for a proper supply of ■ pure and unpolluted waters.

*70The damage to the owners and proprietors of land on Silver Brook sufficiently appears by the affidavits read on the hearing of this rule; and in addition to the testimony of numbers as to the consequences of the pollution of the waters of Mill Creek to the business operations of the complainant at its mills is the positive testimony of the superintendent and assistant superintendent before referred to.

This case appears to be one which calls for the interposition of this court by way of preliminary injunction.

Where a complainant shows a reasonable and well-founded apprehension of immediate threatened and irreparable injury and loss, it is a duty of courts of equity, in cases within their jurisdiction, to restrain the commission of such injury and infliction of such loss.

I shall not attempt to discuss all the questions raised by the respective parties to this cause in the arguments of their, respective solicitors, nor shall I notice in detail in this opinion the many authorities cited in their arguments, which arguments were learned and elaborate. I have, however, carefully considered these authorities and weighed the arguments of the solicitors. I shall content myself, however, with stating a few propositions well established by authority, and which admit of no reasonable doubt.

The complainant has a legal right to the flow of water of said Mill Creek in its accustomed channel and in its usual volume. It has a legal right to the flow of said stream in its accustomed purity, unpolluted by riparian owners above.

To so pollute a stream as to render it useless to riparian owners below is practically, as to them, to destroy the stream, and to destroy their rights therein, as riparian owners.

The- authority of a court of equity to restrain the pol*71lufcion of natural streams of water, where such pollution will cause irreparable injury and loss to a riparian owner in his accustomed and necessary legal use of the waters thereof, is unquestionable and established by numerous authorities, some of which have been cited in arguments in this cause.

Where the danger threatened is of such a nature that it cannot easily be remedied in case of a refusal of relief, and the answer does not deny that the act charged is ■contemplated, an interlocutory injunction will be allowed, unless the equities of the bill are satisfactorily refuted by "the defendant. United States v. Duluth, 1 Dill. 469.

It seems in that case that numerous affidavits of engineers and others were offered on both sides as to the ■effect of the work sought to be enjoined; the opinions ■expressed being quite conflicting. The court, Miller, J., .said : “ The affidavits on both sides are numerous. They demonstrate what all courts and juries have so often felt, that where the question is one of opinion, and not of fact, though that opinion should be founded on scientific principles or professional skill, the inquiry is painfully unsatisfactory, and the answers strangely contradictory. In this emergency I am relieved by a principle which has generally governed me, and which, I believe, governs nearly all judges in applications for preliminary injunctions. It is that when the danger or injury threatened is of a character which cannot be easily remedied if the injunction is refused, and there is no denial that the act charged is contemplated, the temporary injunction should be granted, unless the case made by the bill is satisfactorily refuted.”

A preliminary injunction is awarded, as prayed in the bill.