Opinion by
Mr. Justice Moore.
1. Plaintiff’s first contention is that Big Pudding River is a public navigable stream; that the erection of a dam across it creates a nuisance to prevent which he is entitled to the interposition of a court of equity. A court of equity will restrain a nuisance when it appears that the complainant will sustain irreparable injury, or be compelled to resort to a multiplicity of actions to recover damages for a continued existence thereof: Bassett v. Salisbury Mfg. Co. 43 N. H. 249. To entitle the plaintiff, however, to such relief, he must allege and show that he has sustained a special or personal injury. “A court of [11] equity,” says Lord, C. J., “ought not to- interfere to prevent a public nuisance, or to abate one already existing, at the instance of a private party, unless he shows a special injury distinct from the public, actually sustained, or justly apprehended. The obstruction of a public highway is, without doubt, a public nuisance; but this of itself is not sufficient to justify the interposition of equity in behalf of the plaintiff, unless he sustains some private, direct, and material damage beyond the public at large”: Luhrs v. Sturtevant, 10 Or. 170. Plaintiff has not alleged that the obstruction of the navigation of the river has caused, or will cause, him any special or personal injury, and hence he is not entitled to any relief on that ground.
2. Will the plaintiff sustain damage from backwater either by overflow or percolation? In Fletcher v. Rylands, L. R. 3 H. L. 330, Mr. Justice Blackburn, in the court of Exchequer Chamber, thus illustrates a rule applicable in this case: “ If a person brings, or accumulates, on his land anything which, if it should escape, may cause damage to his neighbor, he does so at his peril.” This principle, thus established, has since been applied to injuries resulting to adjoining land from the percolation of an artificial reservoir: Gould, Waters, § 296. If a dam be erected across a stream, and the water raised above the natural flow, it forms a reservoir which necessarily creates an artificial pressure: Wilson v. New Bedford, 108 Mass. 261, 11 Am. Rep. 352; and if the effect be to force the water through the earth from the reservoir to the neighboring lands, causing them to produce poorer crops, damages can be recovered for such injury: Mason Mfg. Co. v. Fuller, 15 Pick. 554; and, if damages be occasioned by raising a pond so as to injuriously affect neighboring lands, no distinction is made whether it be by overflowing or by percolation: Fuller v. Chickopee Mfg. Co. 16 [12] Gray, 46; Pixley v. Clark, 35 N. Y. 520, 91 Am. Dec. 72. The rule deducible from these authorities may be briefly stated as follows: If a person, by artificial means, raises a volume of water above its natural level, and, by percolation, or by overflow, injures neighboring lands without license, prescription, or grant from the proprietor, the latter may invoke the interposition of a court of equity, and obtain an injunction to prevent it, when he would sustain irreparable injury, or be compelled to bring a mutiplicity of actions to recover the damages as they accrued. It is not claimed that the proposed dam will, if erected, cause the water to overflow the banks of the river at ordinary stages, but that in times of freshet this 'danger is to be apprehended. The evidence is conclusive that it is only during freshets that the water of the river will overflow the banks. These freshets usually occur in the winter, about once in three years, when quite a portion of plaintiff’s land is submerged, and this has happened each freshet since the dam was carried out. To entitle plaintiff to relief, he must show that, in consequence of the existence of the dam, lands of his would be submerged, which, without it, would not be. The evidence fails to establish this fact, and since the lands have been overflowed by freshets in the absence of the dam, it cannot be inferred that the damage from overflow would be augmented by its existence, and thus his injury, if any, must be due to percolation.
The plaintiff and his witnesses testify that the soil adjacent to the river is a sandy loam, while the defendant and an equal number of witnesses testify that it is a hard clay, except in a few places where an eddy of the river has deposited some sand. No direct evidence was offered that tended to prove that the water percolated through the soil, but this is sought to be established by proving that since the dam was carried out, a low place [13] about three fourths of a mile below its site, and but a few hundred yards from the river, had been cultivated which before that time was wet, and covered with brush, and from this it is claimed, by inference, that the fact has been established. The evidence shows that since the Willamette Valley was first settled many places that were then low and wet have since become dry and arable. Careful surveys of plaintiff’s land were made by competent engineers, levels were run, and maps showing the topography thereof were offered in evidence by each party, from which it appears that there are ponds upon it which it was claimed were filled by percolation from the river. These surveys show that the water in each was much higher than the level of the riyer at the time they were made, and the inference must be drawn that they were filled by an overflow from the river, or from surface drainage, and not by percolation, as claimed by plaintiff.
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Opinion by
Mr. Justice Moore.
1. Plaintiff’s first contention is that Big Pudding River is a public navigable stream; that the erection of a dam across it creates a nuisance to prevent which he is entitled to the interposition of a court of equity. A court of equity will restrain a nuisance when it appears that the complainant will sustain irreparable injury, or be compelled to resort to a multiplicity of actions to recover damages for a continued existence thereof: Bassett v. Salisbury Mfg. Co. 43 N. H. 249. To entitle the plaintiff, however, to such relief, he must allege and show that he has sustained a special or personal injury. “A court of [11] equity,” says Lord, C. J., “ought not to- interfere to prevent a public nuisance, or to abate one already existing, at the instance of a private party, unless he shows a special injury distinct from the public, actually sustained, or justly apprehended. The obstruction of a public highway is, without doubt, a public nuisance; but this of itself is not sufficient to justify the interposition of equity in behalf of the plaintiff, unless he sustains some private, direct, and material damage beyond the public at large”: Luhrs v. Sturtevant, 10 Or. 170. Plaintiff has not alleged that the obstruction of the navigation of the river has caused, or will cause, him any special or personal injury, and hence he is not entitled to any relief on that ground.
2. Will the plaintiff sustain damage from backwater either by overflow or percolation? In Fletcher v. Rylands, L. R. 3 H. L. 330, Mr. Justice Blackburn, in the court of Exchequer Chamber, thus illustrates a rule applicable in this case: “ If a person brings, or accumulates, on his land anything which, if it should escape, may cause damage to his neighbor, he does so at his peril.” This principle, thus established, has since been applied to injuries resulting to adjoining land from the percolation of an artificial reservoir: Gould, Waters, § 296. If a dam be erected across a stream, and the water raised above the natural flow, it forms a reservoir which necessarily creates an artificial pressure: Wilson v. New Bedford, 108 Mass. 261, 11 Am. Rep. 352; and if the effect be to force the water through the earth from the reservoir to the neighboring lands, causing them to produce poorer crops, damages can be recovered for such injury: Mason Mfg. Co. v. Fuller, 15 Pick. 554; and, if damages be occasioned by raising a pond so as to injuriously affect neighboring lands, no distinction is made whether it be by overflowing or by percolation: Fuller v. Chickopee Mfg. Co. 16 [12] Gray, 46; Pixley v. Clark, 35 N. Y. 520, 91 Am. Dec. 72. The rule deducible from these authorities may be briefly stated as follows: If a person, by artificial means, raises a volume of water above its natural level, and, by percolation, or by overflow, injures neighboring lands without license, prescription, or grant from the proprietor, the latter may invoke the interposition of a court of equity, and obtain an injunction to prevent it, when he would sustain irreparable injury, or be compelled to bring a mutiplicity of actions to recover the damages as they accrued. It is not claimed that the proposed dam will, if erected, cause the water to overflow the banks of the river at ordinary stages, but that in times of freshet this 'danger is to be apprehended. The evidence is conclusive that it is only during freshets that the water of the river will overflow the banks. These freshets usually occur in the winter, about once in three years, when quite a portion of plaintiff’s land is submerged, and this has happened each freshet since the dam was carried out. To entitle plaintiff to relief, he must show that, in consequence of the existence of the dam, lands of his would be submerged, which, without it, would not be. The evidence fails to establish this fact, and since the lands have been overflowed by freshets in the absence of the dam, it cannot be inferred that the damage from overflow would be augmented by its existence, and thus his injury, if any, must be due to percolation.
The plaintiff and his witnesses testify that the soil adjacent to the river is a sandy loam, while the defendant and an equal number of witnesses testify that it is a hard clay, except in a few places where an eddy of the river has deposited some sand. No direct evidence was offered that tended to prove that the water percolated through the soil, but this is sought to be established by proving that since the dam was carried out, a low place [13] about three fourths of a mile below its site, and but a few hundred yards from the river, had been cultivated which before that time was wet, and covered with brush, and from this it is claimed, by inference, that the fact has been established. The evidence shows that since the Willamette Valley was first settled many places that were then low and wet have since become dry and arable. Careful surveys of plaintiff’s land were made by competent engineers, levels were run, and maps showing the topography thereof were offered in evidence by each party, from which it appears that there are ponds upon it which it was claimed were filled by percolation from the river. These surveys show that the water in each was much higher than the level of the riyer at the time they were made, and the inference must be drawn that they were filled by an overflow from the river, or from surface drainage, and not by percolation, as claimed by plaintiff.
3. It is contended that by erecting the dam the water will become foul, stagnant, and unhealthy, thereby impregnating the atmosphere with malaria, which will render the plaintiff and his family liable to sickness. When a dam causes an artificial head of water to become, stagnant, and so corrupts the atmosphere as to impair the health of the neighborhood, it thereby becomes a nuisance, and is ground for relief in equity by injunction on the part of those suffering special injury therefrom. But to entitle a person to such relief the nuisance must actually exist, and not be merely apprehended: Gould, Waters, § 212. “A probability,” says Robertson, 0. J., “that a thing may become a nuisance, or, in other words, an actual and substantial annoyance, public or private, does not make-a nuisance which can be lawfully abated: Gates v. Blincoe, 2 Dans. 158, 26 Am. Dec. 440; and therefore, Lord Hardwicke, in an anonymous case in 3 [14] Atkyns, said that * the fears of mankind, though they may be reasonable, will not create a nuisance.’” The evidence shows that plaintiff and his family were, before the dam went out, subject to attacks of malaria, but that since that time they have been quite free from its effects. It also shows that the earlier settlers on the higher land, as well as along the banks of Big Pudding River, were more or less subject to malarial attacks, but that, by the cultivation of the soil, or from natural causes, the health of the neighborhood has much improved, and the effect of malaria is now rarely felt. The plaintiff attributes these former attacks of malaria to the existence of the dam, but of this he cannot be certain since Poison Lake, which was then and now is a stagnant pool from which miasmatic poisons probably emanated, may have been the direct cause. The evidence fails to show that the erection of the dam would cause such injury to the health of the plaintiff or his family as he apprehends. Our statute, sections 3788-3826, Hill’s Code, recognizes the necessity of mills for all manufacturing purposes, and has provided ample means for acquiring the right to erect dams and backwater to operate them, and a court of equity should hesitate before it ruthlessly destroyed a property of such value, unless the proof was clear and convincing that the backwater thus raised was detrimental to the health of the neighborhood. The decree of the court below is affirmed. Affirmed.