bination or concert. It is not a defence to an action against one of them that all are not joined as defendants, and the fact that the independent trespasses of others also produced injury to the plaintiff can be considered only upon the question of damages. An action for causing the waters of a lake to overflow the plaintiff's land by the maintenance of a dam across one branch of the outlet of the lake lies, although another and higher dam was subsequently erected across the other branch of the outlet by a third person acting separately, and neither dam of itself would cause the flowage.2 In Lull v. Fox Improvement Co.,3 in Wisconsin, it was held that each of the owners of different dams is liable for the injury occasioned by his own dam, and that the several causes of action cannot be joined in the same suit. The rule which prevents a recovery by one tort-feasor against another, where the negligence or legal fault of both contributes to the injury, does not apply to the obstruction of a stream, and the fact that a mill-owner obstructs the flow of water to his own mill does not prevent his recovering damages from those who cause an additional obstruction.⭑

§ 223. An action for damages may be maintained by a riparian proprietor for pollution of a stream; and a perpetual injunction may be granted to restrain the nuisance, if it is of a continuous nature, even when the plaintiff could only recover nominal damages at law, because of the in

1 Pumpelly v. Green Bay Co., 13 Wall. 166; Arimond v. Green Bay Canal Co., 35 Wis. 41; Jones v. United States, 48 Wis. 385; Folsom v. Apple River Co., 41 Wis. 602; Richardson v. Kier, 34 Cal. 63; Hooksett v. Amoskeag Manuf. Co., 44 N. H. 105.

2 Arimond v. Green Bay Canal Co., 35 Wis. 41; 31 Wis. 316.

3 19 Wis. 100. See Wheeler v. Worcester, 10 Allen, 591; Wright v. Cooper, 1 Tyler (Vt.) 425; 2 Thompson on Negligence, 1088. In an action to abate, as a nuisance, a dam

which overflows the plaintiff's land, brought against the person who constructed it, the grantees of the right to use the water are not necessary defendants. Newell v. Smith, 26 Wis. 582. The owner of a dam exposes himself to as many suits as there are parties whose rights are injuriously affected by his wrongful acts. Toothaker v. Winslow, 61 Maine, 123, 133.

4 Clarke v. French, 122 Mass. 419; Brown v. Dean, 123 Mass. 254; Williamson v. Yingling, 80 Ind. 379.

convenience of repeated and successive actions, and of the acquisition of an adverse right to pollute by the continuance of the act for twenty years. The court will not, in general, award damages in lieu of an injunction,2 and if it is established that the mischief complained of is a special injury to a private right, even though it may also amount to a public nuisance,3 the plaintiff is entitled to an injunction at once, whatever inconvenience or expense it may cause to the defendant. Where, however, the difficulty of remov ing the nuisance is great, the court will suspend the injunction for a time to render its removal possible. In granting an injunction to restrain pollution by sewage matter, it is the practice in England to grant an immediate injunction restraining any new communications with the stream, and to suspend the operation of the order for a time to enable the defendants to comply with the order by altering their works. If the injury is caused by the acts of a city in discharging its sewage unlawfully, due regard will be had to the public

Clowes v. Staffordshire Water Co., L. R.8 Ch. 125, 143; Pennington v. Brinsop Hall Coal Co., 5 Ch. D. 769; Swindon Water Co. v. Wilts Canal, L. R. 7 H. L. 705; Goldsmith v. Tunbridge Wells, L. R. 1 Ch. 349; L. R. 1 Eq. 161; Crossley v. Lightowler, L. R. 2 Ch. 478; L. R. 3 Eq. 279; Harrop v. Hirst, L. R. 4 Ex. 43; Attorney General v. Birmingham, 4 Kay & J. 528; Nuneaton Local Board v. General Sewage Co., L. R. 20 Eq. 127; Attorney General v. Gee, L. R. 10 Eq. 131; Coulson & Forbes on Waters, 157; Merrifield v. Lombard, 13 Allen, 18; Holsman v. Boiling Spring Bleaching Co., 14 N. J. Eq. 335; Lewis v. Stein, 16 Ala. 214; New Boston Coal Co. v. Pottsville Water Co., 54 Penn. St. 164.

2 Clowes v. Staffordshire Potteries Waterworks Co., L. R. 8 Ch. 125: Pennington v. Brinsop Hall Coal Co., 5 Ch. D. 769; Wood v. Sutcliffe, 2 Sim. N. S. 163; Imperial Gas Co. v. Broadbent, 7 H. L. 612; Kerr on In

junctions (4th ed.), 44; Aynsley v. Glover, L. R. 18 Eq. 544; L. R. 10 Ch. 283; Dent v. Auction Mart, L. R. 2 Eq. 283; Leech v. Schweder, L. R. 9 Ch. 463.

8 Haskell v. New Bedford, 108 Mass. 216; Reg. v. Bradford Navigation Co., 34 L. J. N. s. (Q. B.) 191.

4 Attorney General v. Birmingham, 4 Kay & J. 520; Attorney General v. Kingston on Thames, 34 L. J. Ch. (N. S.) 481.

5 Ibid.; Spiker v. Banbury, L. R. 1 Eq. 42; Attorney General v. Sheffield, 3 De Gex, M. & G. 304; Attorney General v. Leeds Corporation, L. R. 5 Ch. 583; Attorney General v. Hackney, L. R. 20 Eq. 631.

6 Ibid.; Attorney General v. Colney Hatch, L. R. 4 Ch. 146; Pennington v. Brinsop Hall Coal Co., 5 Ch. 769; Attorney General v. Halifax, 29 L. J. Ch. 129; Goldsmith v. Tunbridge Wells, L. R. 1 Ch. 163; L. R. 1 Eq. 349; Attorney General v. Richmond, L. R. 2 Eq. 306.

interests, to existing conditions, and the injury which must ensue if the plaintiff's rights are strictly enforced without time to make other provision for the public needs.1 An injunction in such cases will not be granted except upon notice and hearing. When conditions are imposed upon a public body for the public benefit, it is no excuse for a breach of such conditions that their observance is not necessary for the protection of the public. If a local board makes an outfall beyond their district, and thereby pours noxious matter into a stream, they cannot excuse themselves on the ground that no damage is caused thereby. Where acts of Parliament empowered a water-works company to take water from a stream, and gave them certain rights against mill-owners on the stream with respect to the quantity of water to be taken, but saved all other rights, the company was held to have no power to foul the water so as to interfere with the rights of mill-owners, and an injunction was granted to restrain the pollution.4

3

§ 224. A company which is authorized by the legislature to make a lock navigation in a public stream, has not the privilege of a riparian owner, and has no right to swell the water at all beyond what it derives from its act of incorporation. And the rights of a riparian proprietor with respect to the stream appear not to be affected by rights which nonriparian proprietors may have acquired to use the water by grant or license from other riparian owners. In Whaley v. Lang, and Crossley v. Lightowler, a non-riparian proprietor,

1 Attorney General v. Bradford Canal, L. R. 2 Eq. 71; Lillywhite v. Trimmer, 36 L. J. Ch. (N. S.) 525; Boston Rolling Mills v. Cambridge, 117 Mass. 396.

2 Society v. Butler, 12 N. J. Eq. 498, 264.

3 Attorney General v. Cockermouth Local Board, L. R. 18 Eq. 172; Attorney General v. Hackney Local Board, L. R. 20 Eq. 626.

4 Clowes v. Staffordshire Waterworks Co., L. R. 8 Ch. 125.

5 Monongahela Navigation Co. v. Coon, 6 Penn. St. 379. In Hill v. Tupper, 2 H. & C. 121, it was held that the grantee of an exclusive liberty of putting or using pleasure boats on a canal could not maintain an action in his own name against a stranger who interfered with such exclusive right.

6 3 H. & N. 675; 2 H. & N. 476. 7 L. R. 2 Ch. 476.

having a right to take water from a stream, was held not to be entitled to maintain an action for its pollution. In Stockport Waterworks Co. v. Potter, a riparian proprietor granted to a water company the right to take water from a river for supplying Stockport with water, and the action was brought by the company for polluting such water. The majority of the court held that a riparian proprietor's rights with respect to the water depend upon his possession of land on the stream, and that a conveyance by him of land not abutting on the stream which affects to grant water rights is valid against the grantor, but does not enable the grantee to sue a third party for an interruption of his rights. Bramwell, B., dissented upon the ground that a man having property may grant to others estates in and enjoyment of it. In Nuttall v. Bracewell,2 the plaintiff's mill was situate on riparian land, and was supplied with water by an open goit, made in 1804 under a written agreement with the adjoining proprietor above, Mr. Bagshaw, through which water was diverted from the stream, at a little distance from which the mill was situated, by a weir on Mr. Bagshaw's land, which was called Tom Milner's Ing, and was returned to the stream below the mill. The defendant, a higher riparian proprietor, was sued by the plaintiff for diverting water from the stream above the weir, and the action was maintained. Martin, B., said: "It would be competent for Mr. Bagshaw, or his successor in ownership of Tom Milner's Ing, to erect a mill upon it, and take the water from the stream to work it, provided he neither penned back the water upon his neighbor above, nor injuriously affected the volume and flow of the water of the stream to his neighbor below. And the law favors the exercise of such a right; it is at once beneficial to the owner and to the commonwealth. And if this be so, why may not the owners of two adjoining closes agree together for their mutual benefit to take the water through a

13 H. & C. 300. See Holker v. Parritt, L. R. 10 Ex. 59; L. R. 8 Ex. 107.

2 L. R. 2 Ex. 1. In cases of diversion of water, it is not necessary

to show actual damages where there is a clear violation of a right and threatened continuance thereof. Brown v. Ashley, 16 Nev. 311; ante, § 214.

goit from the close of the one into the close of the other, returning the water to the stream in the close of the latter, and thereby doing no injury to any one. In point of fact, very many goits pass through the land of different landowners between the place where the water is taken from the stream and the mill where it works the machinery." He was of opinion that although the right to the flow of water in a goit was an easement which could bind the grantor only when created by deed, yet the plaintiff's possession of the goit gave him a right of action against a wrongdoer. Pollock, C. B., and Channell, B., held that the diversion of the stream by means of the goit was lawful, and amounted to a division of the stream into two channels; and that the plaintiff, as a riparian owner on the goit, had all the rights which a riparian owner would have had on a natural stream. In Bristol Hydraulic Co. v. Boyer,1 in Indiana, the plaintiff was a non-riparian proprietor whose land and mills were near to but not upon the Little Elkhart River. The mills were propelled by water taken from that river by means of a dam across it higher up the stream, and conducted through a race from his dam to the mills, and thence by a tail-race back into the river a short distance above its confluence with the St. Joseph River. The defendants' dam, which was across the latter river below the junction of the two streams, backed the water in the plaintiff's tail-race to the obstruction of his mill-wheels. The plaintiff had an easement in the land occupied by his dam, head-race, and tail-race, granted for the purpose of authorizing the diversion and flow of the water, but it did not clearly appear whether he had acquired the right to divert the water from all the riparian owners between his dam and the mouth of, his tailThe defendants were held liable to the plaintiff.

race.

§ 225. The right to the water of a river flowing in a natural channel, and the right to water flowing through different estates in an artificial channel, such as a canal, aqueduct, or ditch, do not rest on the same principle. In

1 67 Ind. 236.