Watercourse. Equity Pleading and Practice, Appeal, Recommittal to master. Equity Jurisdiction, To enforce riparian rights, Damages. Damages, In equity.
In a suit in equity by an owner of land bordering on a stream against an upper riparian owner to enjoin the defendant from polluting the stream and for damages, a master to whom the case was referred found that the defendant had polluted the stream, and an interlocutory decree was made confirming the report and enjoining the defendant as prayed for. On an appeal by the defendant from such decree, this court ordered a decree for the plaintiff and gave him leave to move for a recommittal of the case to the master for an assessment of damages. Held, that the only questions that were open upon such recommittal were questions relating to damages, and that the defendant should not be permitted to introduce evidence to show that other persons besides himself caused the pollution complained of.
In a suit in equity by an owner of property on a stream to enjoin pollution of the stream and for damages, the plaintiff may recover not only for diminution in the rental value of his property during the time since the pollution began, but also for depreciation in the market value of the property, and for the cost of cleaning out his mill pond contaminated by the defendant's pollution, if he shows that he has suffered damages in those particulars because of the defendant's acts.
Where, in a suit in equity by a lower against an upper owner of land on a watercourse, it appears that certain damages were caused to the plaintiff by reason of pollution of the stream by the defendant, and that the water, in the condition in which it was when it reached the defendant and before he polluted it, would not have harmed the plaintiff, the plaintiff is entitled to full compensation for all the damage caused by the defendant's acts irrespective of the fact that, if the water when it came to the defendant had been purer, the pollution caused by the defendant would have been less injurious to the plaintiff.
Where, in a suit in equity by a lower against an upper owner of land on a watercourse, in which the plaintiff seeks damages, it appears that the defendant has polluted the stream without right, and the plaintiff claims as one element of his damages diminution in the rental value of his premises, and it also appears that the use which the plaintiff makes of the stream also pollutes it but that he has a prescriptive right so to use it, a request by the defendant for a ruling that the plaintiff, in computing the rental value of his property, is not entitled to include any profit "due to his own illegal pollution of the stream," is inapplicable and should not be granted.
SHELDON, J.
When this case came on for hearing upon the master's second report and the exceptions thereto, the single justice ruled that it must be taken to have been settled by the former proceedings that the stream had been polluted so as to be unfit at the plaintiff's dam for any manufacturing purposes which required clean water, and that the pollution had been caused by the defendant. This was correct. It was the very point which was passed upon and decided when the case first came before us. Parker v. American Woolen Co. 195 Mass. 591. After that decision, the case was recommitted to the master for the assessment of the plaintiff's damages, and it is only matters bearing upon that question that now are open.
Many of the arguments that have been made for the defendant are upon questions of fact that were raised before the master. These no doubt were addressed to the master, and were given proper weight by him. Upon examination of the evidence reported, we do not find that any of his findings of fact that now are objected to were plainly wrong. Indeed they seem to have been well supported by the evidence before him. Accordingly we must accept them.
It could not have been ruled that the plaintiff's damages were to be measured solely by the diminution in the amount of the rental value of his premises, whether we take this to mean the loss of the rents and profits thereof or the diminution in the value of the use of his property during the period in question, due to the pollution caused by the defendant. These were elements to be considered in determining the amount of his damages, but they were not necessarily the sole matters to be looked at. One of the results of the defendant's wrongful acts, it has been found, was a depreciation of the value of the plaintiff's property. He would not obtain full justice unless he were compensated for this. His mill pond must be cleaned out, and the injurious deposits therein must be removed. Plainly he should recover the necessary expense of doing this. He is entitled to full compensation for all the injury done to him. So far as this included rental value, it must be the rental value of his premises in their condition at the time, but without the existing pollution of the water. Business profits have not been allowed to him. See as to these questions White v. Moseley, 8 Pick. 356, 359; Bradley v. Rea, 14 Allen, 20; Johnson v. Holyoke, 105 Mass. 80; Horton v. Cooley, 135 Mass. 589; French v. Connecticut River Lumber Co. 145 Mass. 261; Pye v. Faxon, 156 Mass. 471, 475; Allen v. Boston, 159 Mass. 324, 337; Peak v. Frost, 162 Mass. 298; O'Brien v. Worcester, 172 Mass. 348; Atwood v. Boston Forwarding Transfer Co. 185 Mass. 557; Weston v. Boston Maine Railroad, 190 Mass. 298; Berry v. Ingalls, 199 Mass. 77; Phelps v. Berkshire Street Railway, 210 Mass. 49; Moore Spinning Co. v. Boston Ice Co. 210 Mass. 364, 370; Finley v. Hershey, 41 Iowa, 389.
Doubtless the defendant is not to be held for damages resulting merely from the independent acts of third persons. But it chose to discharge noxious substances into the stream and thereby so to pollute the water as to cause loss to the plaintiff. The water, as has been found, was already somewhat contaminated from other causes, so that it was not fit for drinking or domestic use. But this degree of pollution did not of itself harm the plaintiff. The fact that under other circumstances, if for example the water as it came to the defendant had been pure, the pollution caused by the defendant might have been less injurious to the plaintiff, is not material. In this respect, the case is like that presented when an injury has been done by a defendant, either purposely or negligently, to a plaintiff, which would not appreciably have harmed a well and normally strong man but has more seriously affected the plaintiff by reason of some bodily weakness or infirmity peculiar to himself, as in Coleman v. New York New Haven Railroad, 106 Mass. 160, 178. The wrongdoer takes the risk of the consequences that may result from his injurious act. See the cases collected in Webber v. Old Colony Street Railway, 210 Mass. 432, 442.
Doubtless the defendant and the third party who also contaminated the stream were not joint wrongdoers. And it is not necessary for us to determine whether the tortious acts of such third persons were independent acts within the strict meaning of that word, or whether, if the damage done to the plaintiff was due in part to the acts of the third parties, the defendant could yet be held liable for the whole damage on the ground that the torts of all of them co-operated in bringing about the one indivisible result of which the plaintiff complains, and so that all the parties must be treated as if they had been joint wrongdoers in intention as well as in the result brought about by their combined acts, according to the rule which has been applied in cases of personal injuries. D'Almeida v. Boston Maine Railroad, 209 Mass. 81, 87. The rule that in a case like the one here presented separate wrongdoers acting independently of each other are liable only for their individual acts has been declared. Mansfield v. Bristor, 76 Ohio St. 270, and 118 Am. St. Rep. 852, and cases in note on p. 873. Pulaski Anthracite Coal Co. v. Gibboney Sand Bar Co. 110 Va. 444, and Gibboney Sand Bar Co. v. Pulaski Anthracite Coal Co. 24 L.R.A. (N.S.) 1185. The real distinction was perhaps taken in Nitro-Phosphate Odam's Manure Co. v. London St. Katharine's Docks Co. 9 Ch. D. 503, 527. On the findings of the master taken together, it sufficiently appears, as we have seen, that the pollution of the stream which caused the plaintiff's damage was due to the acts of the defendant and not to those of other parties. This is stated in the master's second report in his finding that the "pollution of the water and loss in rental value, was caused by acts of the defendant company." And again he found "that the piggery on Beaver Brook did not at any time substantially or materially contribute to the pollution of the brook during the period considered, and that the rendering plant above the mill ceased to do business in 1902, and did not contribute substantially or materially to the pollution of the brook before 1902." By reason of these findings the sixth and seventh requests for rulings which the defendant asked the master to give were inapplicable to the case. The rulings made by the single justice upon this question have done no injury to the defendant, and afford to it no ground of complaint.
The master's finding that the plaintiff had a prescriptive right to pollute the water at his paper mill made it unnecessary to give the ruling requested by the defendant, that in computing the rental value of his property the plaintiff was not entitled to include any profit due to his own illegal pollution of the stream. No such illegal pollution by the plaintiff was found. And the defendant's claim that it had put in as strong evidence of its own prescriptive right as that upon which this finding in favor of the plaintiff was made, if we assume that this position is now open to it, merely illustrates the rule that findings made by a master upon conflicting evidence are not lightly to be overthrown. The evidence in support of the two contentions did not seem to him to be equally strong, and we cannot reverse his conclusion.
On the master's findings, the plaintiff's claim for additional damages was properly disallowed.
It is unnecessary to consider the exceptions in detail. As we discover no reason for disagreeing with the findings of the master that have been contested before us, and no error of law in dealing therewith, the decree entered by the single justice must be affirmed; and it is.
So ordered.