New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1907-07-07
THE LAW on STREAM POLLUTION

Governor TIugheS's cmnently appropriate ana
desirable order to the State Commissioner or
Health to look into the matter Of the alleged
noIlutiOn of certain streams in this state, and
the activity OF n committee in New Jersey when
Is irving 70 redeem the lower part of the Rartan
River from revolving and dangerous contamina-
, ton. give timely point 10 the publication In
''The Engineering Record" Of n synopsis Of an
interesting decision recently made by Justice
IIainer of the Supreme Court of Oklahoma. in
! the case of q farmerevho brought suit for dam
ages against the city of Guthrie because its
discharge OF it's sewage into Cottonwood Creek
had So polluted the water of thnt stream as to
deprive him on his farm little down stream
of his former and normal use of it. In deciding
the suit favoraby 10 the plaintiff Justice
Haincr took occasion to review deliberately n
number of former decisions in similar cases In
various courts IN this country and in England,
the result being an instructive compendium of
judicial opinions the general subject OF the
pollution of streams with sewage.
Generally speaking, the consensus Of opinion
is that the pollution Of streams with sewage IS
not permissible with impunity, and that II may
he stopped by injunction that indemnity may
he collected by riparian proprIetors for the dam
, age which II does them. The grounds OF this
opinion vary. In England and in of the
states OF this Union it is held that n riparian
proprietor is entitled 10 indemnity for injury
done 10 him ON the broad ground OF common
sense and natural justice. proceedings being had
in equity. In other states and In the Supreme
Court of the United States the view prevails
that the plaintiff Is entitled tn indemnity the
ground that his Of water is property right.
and that in depriving him OF that by pollut-
ing the water with sewage the municipality
takes private property for public use within the
meaning of the United States Constitution The
courts OF other states have made similar de-
csiOns on the similar ground that private prop
erty IS taken or damaged within the meaning
Of the constitutions OF those states Stil other
states hold that the riparian proprietor is en-
titled to Indemnity because the discharge of
sewage into the stream constitutes a nuisance.
All agree that indemnity may be recovered for
proved damages. and some hold in addition that
injunctlons may be issued against the continua-
ton of the nuisance. The only exceptions are
certain not very explicit decisions OF the Sr-
rrnme Court Of Indiana in the cases of certain
complaints against the city OF Valparaiso for
pouting with sewage the waters Of Salt Creek
and even these do not seem directly to oppose
the otherwise unanimous and universal judg-
ment.
1t is not Of course. Contended that a riparian
proprietor is entitled to receive water always
in pristine purity. The natural surface drain
age may flow into the stream. and if ii is suf-
ficient to contaminate 1t there is apparently no
legal remedy. But what is unlawful Is for n
municipality TO collect sewage artihcially and
pour II into n stream TO such an extent as to
make the water unfit for former uses or. IL the
impossibility Of diSposing Of sewage otherwise
makes II necessary thus TO pOllute 4 stream
the city may take the bed OF the stream for a
sewer under the right of eminent domain but
II must make suitable compensation TO the own
ers of riparian lands. just though it had
taken their land instead Of water All this It
Will be observed. applies to municipalities sit
uated upon the banks of the streams in question
The case Is still stronger against private es-
Establishments, such factories which poll1te
the streams with poisonous waste and which
have no right OF eminent domain, and also
against allen municipalities--like those in the
Bronx Valley, which want TO pour their sewage
into the Iudson-which have not even the nat
ural right OF surface drainage into the streams
1t is 10 be hoped that under Governor Hughes's
urging the State Commissioner of Health will
find way TO rid the upper Hudson and other
streams of the pollution which they now suffer
If not, while we would not incite righteousness
we must express the belief that the opinions and
decisions cited by Justice Hainer Indicate y DOS
sibility that aggrieved persons NAV find relief
and indemnity through the ordinary processes of
the law.