The opinion of the court was delivered by
Royce, Ch. J.
The bill in this case alleged that the orators then were, and for a long time previous had been, the owners and possessors of a mill and the necessary machinery for operating the same, situate on a small stream flowing into the Battenkill river, in the town of Arlington ; that they were the owners of the land through which said stream runs between said mill and the Batten-[11]*11kill river; that said stream was constituted of two small streams the sources of which were some distance above the lands of the orators, and which united their waters upon the land of the orators, thus making the stream upon which the orators’ mill was situate : that the defendants were the owners of a mill erected and used for the purpose of manufacturing lumber and clothes pins, situate on the same stream, some distance above the orators’ mill; that they then were and for a long time before had been, engaged in the manufacture of lumber and clothes pins in said mill, and in such manufacture had made large quantities of sawdust, shavings and refuse, and had discharged and thrown the same into said stream, and they had been carried by the current of the stream into the orators’ mill-pond, where they had settled and remained and had nearly filled it up, whereby the orators had been compelled to stop their mill, draw off the water in their pond, and at great expense and trouble remove said sawdust, shavings and refuse ; that some portion of said sawdust, shavings and refuse had been carried past the orators’ mill and lodged and deposited on their meadow land between their mill and the Battenkill river; that the defendants had diverted the water of one of the aforesaid streams which helped to make the stream upon which the orators’ mill is situate from its natural channel, in which it .had flowed from time immemorial, whereby the orators were deprived- of its use ; that the defendants were in the habit of storing up, or ponding the water in said stream and then discharging the same in an unreasonable manner, and so as to deprive the orators of the beneficial use of the same. These are the allegations, substantially, upon which the orators predicate their claim to relief in this court.
The answer admits the title under which the property of the parties is held, as alleged in the bill; that the use of the two mills has been, to a certain extent, as alleged ; that some portion of the sawdust, shavings and refuse made at the defendants’ mill has been discharged, or deposited, in said stream, averring that it was necessary to the operation of their mill and the carrying on of their business that it should be so discharged or deposited ; and that in so doing, they were in the exercise of a legal right: and denying that the orators had been injured thereby in the use and enjoyment [12]*12of their mill, or their land injured by the lodging or depositing thereon of any sawdust, shavings or refuse made at the defendants’ mill. It admits the diversion of the stream and justifies the same ; admits the storing or ponding of the water to a certain extent, and justifies the same.
Upon the issues of fact thus made a large amount of testimony has been taken — much more than seems to have been necessary under the pleadings. The orators pray that an account may be taken of the damages that they have sustained, and that the defendants be decreed to pay the same, and for an injunction.
No question is made in the answer as to the jurisdiction of the Court of Chancery; and inasmuch as no objection was made to the jurisdiction of that court by answer, plea or motion, the court might properly treat it as having been waived. But inasmuch as the defendants’ solicitor in argument insists that the orators have not made out a case that entitles them to any equitable relief, we have considered the jurisdictional question.
The relief that is granted by a court of equity, is either remedial or preventive ; it either grants positive and affirmative relief, or restrains the doing of acts • that are against equity and good conscience. In giving remedial relief it usually proceeds by decree ; and administers preventive relief by injunction. The orators in this case pray for preventive, as well as affirmative relief. The allegations in the bill give the Court of Chancery, prima facie, jurisdiction over the subject-matter and the parties. When the act complained of is of such a character that courts of law cannot give an adequate compensation for the injury resulting therefrom, or, if continued, would ripen into a right, or lead to a multiplicity of suits, a court of equity may, by injunction, restrain the continuance of the act. In Blakemore v. Glamorganshire Canal Navigation Co., 1 Mylne & Keen, 154, 185, it is said by Lord Brougham, in speaking of this remedy, and in a case quite analogous to this in its facts, that such a restraint should be imposed as may suffice to stop the mischief complained of; and, when it is to stay injury, to keep things as they are for the present. Past injuries are, in themselves, no ground for an injunction ; the province of the injunction being to prevent future mis[13]*13chief. Numerous cases are referred to in the 10th chapter of Angelí on Water Courses, and Bennett’s edition of Goddard’s Law of Easements, where this remedy has been applied to prevent the obstruction or pollution of water courses.
The court, then, having jurisdiction, it must be determined from the pleadings and proofs whether the allegations in the bill are so far proven as to entitle the orators to equitable relief. And first, as to the diversion of the stream complained of. It is found that the defendants diverted the water of that stream from its natural' channel by means of an artificial channel made by them, for the purpose of using the water in propelling the machinery of their mill; and, after it had been so used by them, it was conducted back into its natural channel at a point a short distance above the premises of the orators ; that in so doing they acted with reasonable care and prudence ; that the natural flow of the water in the stream at its point of connection with the other stream below the defendants’ mill was not materially lessened by the use so made of it by them ; and, that the orators have not sustained any appreciable injury by reason of such diversion and use. The orators had no riparian rights in the stream where it was diverted ; because they were not the owners of the land through which it runs ; and while it is true that the owner of land, through which a stream flows, has no right to divert its course to the prejudice of those below him, they have no cause for complaint if they are not in any way injured by such diversion. So the defendants were in the exercise of their legal rights in the diversion of said stream and the use of the water.
The allegation that the defendants stored or ponded the water, and discharged the same in such quantities, and at such times as to do a legal injury to the orators, is not sustained by the proofs. The defendants had the right to the use of the water and to detain it as long as was necessary to .the proper enjoyment of that right. In the detention of the water they did not exceed that right; and when they had so used it, it was discharged in a reasonable and proper manner. See Angelí on Water Courses, sec. 119, and cases cited.
The complaint, that the orators’ lands below their mill were [14]*14injured by tbe depositing tbereon of the waste from the defendants’ mill, is not so sustained as to éntitle them to any relief in this court.
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The opinion of the court was delivered by
Royce, Ch. J.
The bill in this case alleged that the orators then were, and for a long time previous had been, the owners and possessors of a mill and the necessary machinery for operating the same, situate on a small stream flowing into the Battenkill river, in the town of Arlington ; that they were the owners of the land through which said stream runs between said mill and the Batten-[11]*11kill river; that said stream was constituted of two small streams the sources of which were some distance above the lands of the orators, and which united their waters upon the land of the orators, thus making the stream upon which the orators’ mill was situate : that the defendants were the owners of a mill erected and used for the purpose of manufacturing lumber and clothes pins, situate on the same stream, some distance above the orators’ mill; that they then were and for a long time before had been, engaged in the manufacture of lumber and clothes pins in said mill, and in such manufacture had made large quantities of sawdust, shavings and refuse, and had discharged and thrown the same into said stream, and they had been carried by the current of the stream into the orators’ mill-pond, where they had settled and remained and had nearly filled it up, whereby the orators had been compelled to stop their mill, draw off the water in their pond, and at great expense and trouble remove said sawdust, shavings and refuse ; that some portion of said sawdust, shavings and refuse had been carried past the orators’ mill and lodged and deposited on their meadow land between their mill and the Battenkill river; that the defendants had diverted the water of one of the aforesaid streams which helped to make the stream upon which the orators’ mill is situate from its natural channel, in which it .had flowed from time immemorial, whereby the orators were deprived- of its use ; that the defendants were in the habit of storing up, or ponding the water in said stream and then discharging the same in an unreasonable manner, and so as to deprive the orators of the beneficial use of the same. These are the allegations, substantially, upon which the orators predicate their claim to relief in this court.
The answer admits the title under which the property of the parties is held, as alleged in the bill; that the use of the two mills has been, to a certain extent, as alleged ; that some portion of the sawdust, shavings and refuse made at the defendants’ mill has been discharged, or deposited, in said stream, averring that it was necessary to the operation of their mill and the carrying on of their business that it should be so discharged or deposited ; and that in so doing, they were in the exercise of a legal right: and denying that the orators had been injured thereby in the use and enjoyment [12]*12of their mill, or their land injured by the lodging or depositing thereon of any sawdust, shavings or refuse made at the defendants’ mill. It admits the diversion of the stream and justifies the same ; admits the storing or ponding of the water to a certain extent, and justifies the same.
Upon the issues of fact thus made a large amount of testimony has been taken — much more than seems to have been necessary under the pleadings. The orators pray that an account may be taken of the damages that they have sustained, and that the defendants be decreed to pay the same, and for an injunction.
No question is made in the answer as to the jurisdiction of the Court of Chancery; and inasmuch as no objection was made to the jurisdiction of that court by answer, plea or motion, the court might properly treat it as having been waived. But inasmuch as the defendants’ solicitor in argument insists that the orators have not made out a case that entitles them to any equitable relief, we have considered the jurisdictional question.
The relief that is granted by a court of equity, is either remedial or preventive ; it either grants positive and affirmative relief, or restrains the doing of acts • that are against equity and good conscience. In giving remedial relief it usually proceeds by decree ; and administers preventive relief by injunction. The orators in this case pray for preventive, as well as affirmative relief. The allegations in the bill give the Court of Chancery, prima facie, jurisdiction over the subject-matter and the parties. When the act complained of is of such a character that courts of law cannot give an adequate compensation for the injury resulting therefrom, or, if continued, would ripen into a right, or lead to a multiplicity of suits, a court of equity may, by injunction, restrain the continuance of the act. In Blakemore v. Glamorganshire Canal Navigation Co., 1 Mylne & Keen, 154, 185, it is said by Lord Brougham, in speaking of this remedy, and in a case quite analogous to this in its facts, that such a restraint should be imposed as may suffice to stop the mischief complained of; and, when it is to stay injury, to keep things as they are for the present. Past injuries are, in themselves, no ground for an injunction ; the province of the injunction being to prevent future mis[13]*13chief. Numerous cases are referred to in the 10th chapter of Angelí on Water Courses, and Bennett’s edition of Goddard’s Law of Easements, where this remedy has been applied to prevent the obstruction or pollution of water courses.
The court, then, having jurisdiction, it must be determined from the pleadings and proofs whether the allegations in the bill are so far proven as to entitle the orators to equitable relief. And first, as to the diversion of the stream complained of. It is found that the defendants diverted the water of that stream from its natural' channel by means of an artificial channel made by them, for the purpose of using the water in propelling the machinery of their mill; and, after it had been so used by them, it was conducted back into its natural channel at a point a short distance above the premises of the orators ; that in so doing they acted with reasonable care and prudence ; that the natural flow of the water in the stream at its point of connection with the other stream below the defendants’ mill was not materially lessened by the use so made of it by them ; and, that the orators have not sustained any appreciable injury by reason of such diversion and use. The orators had no riparian rights in the stream where it was diverted ; because they were not the owners of the land through which it runs ; and while it is true that the owner of land, through which a stream flows, has no right to divert its course to the prejudice of those below him, they have no cause for complaint if they are not in any way injured by such diversion. So the defendants were in the exercise of their legal rights in the diversion of said stream and the use of the water.
The allegation that the defendants stored or ponded the water, and discharged the same in such quantities, and at such times as to do a legal injury to the orators, is not sustained by the proofs. The defendants had the right to the use of the water and to detain it as long as was necessary to .the proper enjoyment of that right. In the detention of the water they did not exceed that right; and when they had so used it, it was discharged in a reasonable and proper manner. See Angelí on Water Courses, sec. 119, and cases cited.
The complaint, that the orators’ lands below their mill were [14]*14injured by tbe depositing tbereon of the waste from the defendants’ mill, is not so sustained as to éntitle them to any relief in this court. We do not doubt that some of the waste from the defendants’ mill was lodged upon the orators’ lands. The waste from their mill and the orators’ mill, and what came from the Battenkill river, were all commingled together, and caused the damage complained of. The aggregate injury occasioned to the orators by all the waste thus deposited is so inconsiderable in amount that we do not feel justified in attempting to ascertain what proportion of it was occasioned by the acts of the defendants.
The remaining and more important question arises under the allegation of the practice of the defendants in discharging their waste into the stream and thereby injuring the orators in the use and enjoyment of their mill. The fact that the defendants had been in the habit of either discharging the waste from their mill directly into the stream or leaving it on the banks in such position that it found its way into the stream in such quantities that it filled up the orators’ pond to the extent that they were put to considerable necessary expense in removing it, and that it seriously interfered with the profitable use of their mill is established by the proofs. It is equally as well established that there was no necessity for the defendants to dispose of their waste in that manner. It was a matter of convenience for them to so dispose of it; they could have gotten rid of it in some other way, but that would have entailed upon them additional expense.
Upon these findings the equitable rights of the parties are to be determined. Shall the defendants be permitted to dispose of their waste as they have hitherto done, notwithstanding the injury it may occasion to the orators ? or shall they be enjoined ?
The maxim, Sic utere tuo ut alienwm non laedas, — which has always been understood to mean that one must so use his own property as not to injure that of another — is one of general application both at law and in equity. The practical enforcement of the principle therein contained has been suspended only in exceptional cases, and when, owing to peculiar circumstances, it has been deemed unjust and inequitable to apply it — as when questions of public interest, benefit or convenience, were involved, and [15]*15it has appeared that the damage to the property owner or owners would be more than compensated by the benefit to them and to the public, arising from a continuance of the act producing the injury ; or, where there has appeared to be a public necessity that could only be met by the continuance of such act.
The cases of Snow v. Parsons, 28 Vt. 459, and Jacobs v. Allard, 42 Vt. 303, are relied on as authority for the proposition that this case is to be regarded as coming within the exception to the above maxim. In Snow v. Parsons, the court, in speaking of the right to the use of water, say that the reasonableness of such use must determine the right, and this must depend upon the extent of detriment to the riparian proprietor below. If it essentially impairs the use below, then it is unreasonable and unlawful, unless it is a thing altogether indispensable to any beneficial use. The court further say that there is no doubt one must be allowed to use a stream in such a manner as to make it useful to himself, even if it do produce slight inconvenience to those below ; and that testimony showing the uniform custom of the country was admissible upon the question of the reasonableness of the use made. In Jacobs v. Allard the facts were different; but the same question was before the court, and they say that “ the true idea of the law involved and governing the subject of this cause is well stated and developed in Snow v. Parsons and although Judge Barrett, in what is subsequently said in the opinion, uses language that, taken alone, might be construed as giving an unlimited right to the manufacturer to discharge his waste into the stream upon which his works are situated, we think that language must have been used with reference to the facts as they appeared in the particular case then under consideration, rather than with the intention of promulgating a general rule upon the subject. The qualification stated by the learned judge in the subsequent portion of the opinion confirms us in this belief.
While it is true that a manufacturer has the right to appropriate and use the water of a stream in a proper manner, it is equally true that he must respect and regard the rights of riparian proprietors below him ; and while such owners must submit to such inconvenience and injury as may result from such use, they are [16]*16not compelled to submit to damages which are not necessarily occasioned thereby. Such damages as are incident to, and necessarily result from, a proper use of the water must be borne ; but the manufacturer has no right to do any act that in its consequences is injurious to others because it is a matter of convenience or economy for him to do it. It is as much the duty of a manufacturer to so dispose of his waste as not to injure others, as it is to refrain from injuring others by any other act. No one is allowed to deposit any substance in a running stream that will pollute its waters to the injury of a riparian proprietor below. Wood v. Sutcliffe, 8 L. & Eq. R. 217 ; Goddard’s Law of Easements, (Bennett’s edition,) 67 and 253. Neither has any one the right to deposit any other substance in such a stream, beyond what is absolutely necessary to a beneficial use of it, to the injury of mill-owners or the lands through which the stream may run. It .would be manifestly unjust to hold that a manufacturer could so conduct his business as to seriously impair the value of the rights and property of other manufacturers on the same stream, below, and injure or perhaps ruin lands of riparian owners without accountability, upon the showing that it was more convenient and economical to him thus to conduct it.
The acts of the defendants in depositing the waste made at their mill in the manner we have found it has been done, were illegal, and a perpetual injunction will be issued, enjoining them, their heirs, executors, administrators and assigns from so disposing of it in the future.
We do not understand in what is now decided, that we are overruling the decisions relied upon by the defendants in 28 and 42 Vt.; but applying the law, as there laid down, to the facts found in this case.
The pro forma decree of the Court of Chancery, dismissing the bill, is reversed and the cause remanded, with a mandate that an injunction be issued perpetually enjoining the defendants, their heirs, executors, administrators and assigns from depositing any sawdust, shavings or refuse in the stream described in the orators’ bill, at any point above the orators’ mill, except such as may be absolutely and indispensably necessary for the beneficial use of [17]*17the water of said stream by the defendants ; and that an account be taken of the damage that the orators have sustained on account of the lodging or depositing of sawdust, shavings and refuse made at the defendants’ mill in their mill-pond, and in the operating of their mill and machinery in consequence thereof. And that upon the ascertainment of the amount of such damages, and after deducting therefrom the proportion thereof that shall be found to have been occasioned by the depositing in said stream of such sawdust, shavings and refuse by the defendants as was absolutely and indispensably necessary for the beneficial use of the water of said stream at that time, a decree be entered for the orators for the amount of the damages that may be so ascertained. And that the costs in the Court of Chancery and in this court be apportioned and settled by the Court of Chancery.