Finch, J.
This action is brought by the plaintiff, as part owner of Squaw Island, for an injunction restraining the city of Buffalo from committing a permanent, continuing trespass upon, and interfering with, the rights of the plaintiff arising from' emptying its sewage into the Niagara river and for damages. Plaintiff further alleges that unless the plaintiff obtains relief by restraining such trespass, nuisance, and illegal and wrongful acts on the part of the defendant, the plaintiff will be compelled to bring its actions from day to day against the defendant to recover its damages. Thus a bill of complaint is stated praying equitable relief on the ground of multiplicity of suits.
The Niagara river is a navigable fresh water stream which forms part of the international boundary line between the United States and Canada. It bounds the city of Buffalo on the west. Close to the east bank of the river and within the city limits is Squaw Island, the major portion of which was purchased by the plaintiff in 1916. In 1926 the plaintiff purchased from the State thirty acres of land under water. The plaintiff, through a licensee, has been engaged in dredging sand and gravel from the island. The dredging is done in the water along the shore of the island and this causes the upland close to the dredged areas to fall into the water. As a result the river has gradually widened, covering many acres of the plaintiff’s land. This dredging by the plaintiff’s licensee created or enlarged a “ bay ” along the shore of the island.
In 1882 the State Legislature authorized the city of Buffalo to construct a sewer running into the Niagara river. This sewer was constructed and is known as the Swan street sewer. It removes the sewage from almost half of the city of Buffalo. Adjacent to the sewer is a city pier known as the Bird Island pier. In the course of
years the outlet of the sewer has been moved slightly and extensions have been built which, for the purposes of this appeal, it is unnecessary to describe in detail. In 1917 a new concrete wall or pier was constructed by the city close to the Bird Island pier and from time to time this wall has been extended.
Prior to 1925 the sewage emitted through the Swan street sewer does not seem to have affected the property of the plaintiff to any appreciable extent, but in that year it began to settle upon the sand and gravel which was being dredged. From then till 1927 these deposits became more and more polluted by sewage and since 1927 they have been so badly polluted that it is claimed that they are useless for commercial purposes.
Subsequent to 1922 the dredging had been done under Federal licenses. The last license of the plaintiff ran to 1929 and was never renewed. Another license of the plaintiff for a portion of the island seems to have been revoked in May, 1927, but the plaintiff had stopped dredging in May, 1927, before the revocation of this license and long before the expiration of the other license.
At the trial there was dispute and conflicting' testimony on the question whether the pollution of the sand and gravel in 1925, after many years during which the discharge of the sewage had not polluted the plaintiff’s land, was the result of the erection of the new stone wall and its extensions and the changes in the sewer outlet by the city, or whether it was the result of the creation or extension of the bay by the plaintiff’s dredging. The trial court found that the bay acted as a settling basin drawing the sewage and other matter upon the sand and gravel under the waters of the bay and that but for the contributing acts of the plaintiff in excavating the sand and gravel, and thereby forming the bay in question, the sewage would have passed down the river without damage.
The trial court in its opinion stated that the Niagara river, being a navigable stream and an international
boundary, and title in the bed of the stream being in the State, is subject to the same rule as tidal waters and that, therefore, riparian owners are not entitled to have the water flow by their property in its natural unpolluted state and that municipalities may sewer into it. It found that the State had granted the city of Buffalo the right to sewer into , the river and that the city had acted in compliance with this grant. It also found that the pollution was the result of the plaintiff’s own acts. The trial court further found that at all times since the construction of the sewer down to the present time the said Swan street sewer has continually discharged and now discharges into the Niagara river upstream from Squaw Island great quantities of domestic, raw, untreated sewage, offal, trade waste, street sweepings, filth and other matter all coming from the city of Buffalo through the various branches of the districts served by said Swan street trunk sewer and that the average dry weather flow and discharge of the Swan street sewer is and has been at the rate of 90 cubic feet per second. Moreover the court found that the first traces of sewage and filth appeared on the land of the plaintiff in the summer of 1925 and that thereafter said sewage and pollution continued to increase until May, 1927, when the destruction of all sand and gravel deposits on said land became complete.
The order and judgment of the Appellate Division recited a reversal on the law and facts. Since only four insignificant findings of fact were reversed, this statement in the order and judgment must be applied in light of what the reversal actually accomplishes. In addition to the reversal of the four findings of fact, the conclusions of law are reversed, but no new findings are made. The reversed findings of fact are either of minor importance or, in substance, conclusions of law. Thus we find that in effect the reversal left intact the findings of fact of Special Term but, instead of exonerating the defendant, as a matter of law it imposed liability upon the city on the
ground that it lacked the right to discharge sewage in such manner as to pollute the sand and gravel of the plaintiff. The Appellate Division further ordered that the action be remitted for the ascertainment of damages and for the issuance of an injunction but that the injunction be withheld till Special Term determined means adequate to avoid the pollution and a reasonable time to put such means into effect, and that the effective date of the injunction should be fixed accordingly and upon such further terms and conditions as in the discretion of the trial court will best preserve the legal rights of the parties. In its opinion accompanying the order, the Appellate Division stated that it did not determine the question of weight of evidence, but assumed that there was proof sufficient to support the findings of the trial court.
The Appellate Division has certified questions to this court.
The appeal is on certified questions from an interlocutory judgment, and, therefore, even though there are reversed findings of fact, this court cannot consider the weight of evidence. We must accept as true the facts found by the Special Term in so far as they have support in the evidence. Special Term has found that sewage from the city sewer has polluted the sand and gravel of the plaintiff, but that the plaintiff brought this upon itself by excavating its sand and gravel and thereby creating the bay, which acts as a settling basin.
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Finch, J.
This action is brought by the plaintiff, as part owner of Squaw Island, for an injunction restraining the city of Buffalo from committing a permanent, continuing trespass upon, and interfering with, the rights of the plaintiff arising from' emptying its sewage into the Niagara river and for damages. Plaintiff further alleges that unless the plaintiff obtains relief by restraining such trespass, nuisance, and illegal and wrongful acts on the part of the defendant, the plaintiff will be compelled to bring its actions from day to day against the defendant to recover its damages. Thus a bill of complaint is stated praying equitable relief on the ground of multiplicity of suits.
The Niagara river is a navigable fresh water stream which forms part of the international boundary line between the United States and Canada. It bounds the city of Buffalo on the west. Close to the east bank of the river and within the city limits is Squaw Island, the major portion of which was purchased by the plaintiff in 1916. In 1926 the plaintiff purchased from the State thirty acres of land under water. The plaintiff, through a licensee, has been engaged in dredging sand and gravel from the island. The dredging is done in the water along the shore of the island and this causes the upland close to the dredged areas to fall into the water. As a result the river has gradually widened, covering many acres of the plaintiff’s land. This dredging by the plaintiff’s licensee created or enlarged a “ bay ” along the shore of the island.
In 1882 the State Legislature authorized the city of Buffalo to construct a sewer running into the Niagara river. This sewer was constructed and is known as the Swan street sewer. It removes the sewage from almost half of the city of Buffalo. Adjacent to the sewer is a city pier known as the Bird Island pier. In the course of
years the outlet of the sewer has been moved slightly and extensions have been built which, for the purposes of this appeal, it is unnecessary to describe in detail. In 1917 a new concrete wall or pier was constructed by the city close to the Bird Island pier and from time to time this wall has been extended.
Prior to 1925 the sewage emitted through the Swan street sewer does not seem to have affected the property of the plaintiff to any appreciable extent, but in that year it began to settle upon the sand and gravel which was being dredged. From then till 1927 these deposits became more and more polluted by sewage and since 1927 they have been so badly polluted that it is claimed that they are useless for commercial purposes.
Subsequent to 1922 the dredging had been done under Federal licenses. The last license of the plaintiff ran to 1929 and was never renewed. Another license of the plaintiff for a portion of the island seems to have been revoked in May, 1927, but the plaintiff had stopped dredging in May, 1927, before the revocation of this license and long before the expiration of the other license.
At the trial there was dispute and conflicting' testimony on the question whether the pollution of the sand and gravel in 1925, after many years during which the discharge of the sewage had not polluted the plaintiff’s land, was the result of the erection of the new stone wall and its extensions and the changes in the sewer outlet by the city, or whether it was the result of the creation or extension of the bay by the plaintiff’s dredging. The trial court found that the bay acted as a settling basin drawing the sewage and other matter upon the sand and gravel under the waters of the bay and that but for the contributing acts of the plaintiff in excavating the sand and gravel, and thereby forming the bay in question, the sewage would have passed down the river without damage.
The trial court in its opinion stated that the Niagara river, being a navigable stream and an international
boundary, and title in the bed of the stream being in the State, is subject to the same rule as tidal waters and that, therefore, riparian owners are not entitled to have the water flow by their property in its natural unpolluted state and that municipalities may sewer into it. It found that the State had granted the city of Buffalo the right to sewer into , the river and that the city had acted in compliance with this grant. It also found that the pollution was the result of the plaintiff’s own acts. The trial court further found that at all times since the construction of the sewer down to the present time the said Swan street sewer has continually discharged and now discharges into the Niagara river upstream from Squaw Island great quantities of domestic, raw, untreated sewage, offal, trade waste, street sweepings, filth and other matter all coming from the city of Buffalo through the various branches of the districts served by said Swan street trunk sewer and that the average dry weather flow and discharge of the Swan street sewer is and has been at the rate of 90 cubic feet per second. Moreover the court found that the first traces of sewage and filth appeared on the land of the plaintiff in the summer of 1925 and that thereafter said sewage and pollution continued to increase until May, 1927, when the destruction of all sand and gravel deposits on said land became complete.
The order and judgment of the Appellate Division recited a reversal on the law and facts. Since only four insignificant findings of fact were reversed, this statement in the order and judgment must be applied in light of what the reversal actually accomplishes. In addition to the reversal of the four findings of fact, the conclusions of law are reversed, but no new findings are made. The reversed findings of fact are either of minor importance or, in substance, conclusions of law. Thus we find that in effect the reversal left intact the findings of fact of Special Term but, instead of exonerating the defendant, as a matter of law it imposed liability upon the city on the
ground that it lacked the right to discharge sewage in such manner as to pollute the sand and gravel of the plaintiff. The Appellate Division further ordered that the action be remitted for the ascertainment of damages and for the issuance of an injunction but that the injunction be withheld till Special Term determined means adequate to avoid the pollution and a reasonable time to put such means into effect, and that the effective date of the injunction should be fixed accordingly and upon such further terms and conditions as in the discretion of the trial court will best preserve the legal rights of the parties. In its opinion accompanying the order, the Appellate Division stated that it did not determine the question of weight of evidence, but assumed that there was proof sufficient to support the findings of the trial court.
The Appellate Division has certified questions to this court.
The appeal is on certified questions from an interlocutory judgment, and, therefore, even though there are reversed findings of fact, this court cannot consider the weight of evidence. We must accept as true the facts found by the Special Term in so far as they have support in the evidence. Special Term has found that sewage from the city sewer has polluted the sand and gravel of the plaintiff, but that the plaintiff brought this upon itself by excavating its sand and gravel and thereby creating the bay, which acts as a settling basin.
The general rule is that a riparian owner in a non-navigable fresh water stream is entitled to have the water that passes his land free from pollution. Such riparian owners, therefore, are entitled to an injunction against a city which pollutes the water of such a stream.
(Sammons
v.
City of Gloversville,
175 N. Y. 346.) As to tidal waters the rule is that riparian owners are not entitled to have such waters free from pollution.
(Seaman
v.
City of New York,
176 App. Div. 608; affd., 227 N. Y. 572;
Darling
v.
City of Newport News,
249 U. S. 540.) The underlying basis for this exception as to tidal waters is that the State is the absolute owner of the bed of the stream and may grant rights therein of benefit to the public, subject only to the right of the public to use the waters for purposes of navigation. (9 R. C. L., p. 682.) The State, however, has title to the bed of the Niagara river
(Matter of Commissioners of State Reservation,
37 Hun, 537), and it is a navigable stream. The questions of how far the city of Buffalo, if duly authorized by the State, may pollute the waters of the Niagara river, and whether the tidal waters rule is applicable to that river, are not before us for the following reason.
The rule permitting the pollution even of tidal waters has been always subject to the limitation that in the absence of express sanction the pollution must not result in a direct trespass or nuisance to the property of riparian owners.
(Bolton
v.
Village of New Rochelle,
84 Hun, 281; cases in 15 British Ruling Cases, p. 1027; 9 R. C. L., p. 683; 84 Am. St. Rep., p. 922. See
Huffmire
v.
City of Brooklyn,
162 N. Y. 584.) Certainly a municipality cannot escape liability for the pollution of waters which results in a continuing direct trespass and nuisance to riparian owners, unless the State has sanctioned such nuisance or trespass. (1 Farnham on The Law of Waters and Water Rights, § 138b.) No such permission or sanction is to be found in the case at bar. The statute merely authorizes the construction of the sewer with an outlet in the-Niagara river. (Laws of 1882, ch. 341.) This does no more than grant permission to discharge sewage into the river. It does not expressly confer authority to create a nuisance or commit a trespass. The rule is that legislative authority, which will justify an injury to private property and afford immunity for acts which otherwise would be a nuisance, must be express, and it applies in full vigor to statutes authorizing municipalities to discharge sewage into rivers.
(Sommons
v.
City of Glovers
ville, 175
N. Y. 346; British Ruling Cases, p. 1035
et seq.;
Montgomery & Phelps, Stream Pollution, p. 124
et seq.)
Whether legislation authorizing pollution which creates a nuisance would be constitutional, it is unnecessary for us to decide at this time.
The point is made that the defendant is not guilty of creating a nuisance, or at least is not responsible for the nuisance, since Special Term- has found that the dredging by the plaintiff resulted in the formation of the bay, which contributed to the nuisance. The plaintiff, however, was doing what it had a perfect right to do. We cannot hold that the plaintiff cannot recover for the nuisance on the ground that, if it did not use its land in the manner in which it had a right to use it, there would be no nuisance. Thus, one who owns or purchases a plot of unimproved land may construct a dwelling house upon it and then complain that noxious gases emitted from a neighboring factory constitute a nuisance. Of course, the owner of the dwelling house brought the damage upon himself by building upon his land adjacent to the factory. But, although there may have been no one in a position to complain prior to the erection of the house of the plaintiff, the plaintiff had the right to build, and the owner of the factory did not have the absolute right to persist in emitting fumes which had become a nuisance. Similarly, the city of Buffalo, which has the right to discharge the sewage into the river, may not persist in doing so in a manner which results in a continuing trespass upon, or a nuisance to the land of the plaintiff while the plaintiff is using the land in a manner in which it has a right so to do.
Leeds
v.
New York Telephone Co.
(178 N. Y. 118), relied upon by the defendant, is not at all in point. That was a personal injury action, in which it was held that negligence of the defendant, if the defendant was negligent at all, was not the proximate cause of the injury, but merely a remote cause, the proximate cause being the
negligence of another. Nor does
Bowman
v.
Humphrey
(132 Iowa, 234) aid the defendant. That case held that the doctrine of contributory negligence was not applicable to an action to recover for a nuisance, but that the erroneous charge on the point had not prejudiced the plaintiff since he had been awarded damages. The opinion contains dicta to the effect that the plaintiff cannot recover for damages occasioned by his own neglect or wrongdoing, but in the case at bar it has not been found that the plaintiff was guilty of neglect or wrongdoing.
The city also argues that the plaintiff is barred from recovering damages because its Federal licenses have been revoked or have expired. The plaintiff, however, has not made application for new licenses. Such licenses might be granted or refused upon present application, but even if refused now, they might be granted in the future. The lack of licenses, therefore, cannot bar the plaintiff from recovering damages, but may be considered in mitigation of damages and even perhaps to the entire elimination thereof.
We conclude, therefore, that the first certified question should be answered in the affirmative, and the second, third, and fourth questions should be answered in the negative.
It is unnecessary to answer the fifth and sixth certified questions except as follows. In view of the fact that an essential municipal activity is involved, and, since the plaintiff, lacking the necessary license, cannot dredge at present, the Special Term, in carrying out the judgment of the Appellate Division, in the event that the city is unable to find means adequate to avoid the pollution, should find the amount of permanent damages, if any, to the plaintiff and withhold the injunction unless the defendant fails to pay or tender to the plaintiff the amount so found within a reasonable time to be fixed by Special Term.
(Ferguson
v.
Village of
Hamburg, 272 N. Y. 234.)
The order and interlocutory judgment of the Appellate
Division should be modified in accordance with this opinion and as so modified affirmed, without costs. The questions certified should be answered as indicated herein.