Gladfelter v. Walker

Robinson, J., delivered the opinion of the Court. This suit was brought to recover damages of the appellant, defendant below, for entering and breaking the ⁹ plaintiff’s close, and for fouling a stream of water, known as “Tlie Little .Falls of the Gunpowder,” which flowed through the farm of the plaintiff. The declaration contains six counts: The last three counts allege substantially, that the stream had long flowed through the plaintiff’s farm in a pure state, but that some months prior to the institution of this suit, the defendant had fouled, and was daily continuing to foul the same by throwing into it certain poisonous substances. The appellant filed six pleas, and the appellee demurred to all except the first and third, upon which he joined issue.

The second plea states that at and long before the time of the committing of the grievances alleged, there was, and still is, an ancient paper mill erected upon said stream, and near the appellee’s land, to which mill was, and still is, annexed the right to use the water of the stream for all purposes belonging to the manufacturing of paper, and that said mill was from its erection, used in such manufacture with the knowledge and acquiescence of the plaintiff; that the defendant purchased the mill, and the right appurtenant thereto, to use the water of the stream for all the purposes of paper manufacture, and that down to the time of such purchase, no objection was made by the plaintiff—that the defendant made use of the water reasonably and properly, and according to the customary methods of manufacturing paper, using only such chemicals and other substances, and employing only such methods and processes as are fit to be used about the manufacture of paper, and conducted the business of manufacturing in all respects in a reasonable and proper manner. This plea is no answer to either of the counts in the declaration. As owner of the land through which the stream flowed, the plaintiff was entitled to the use of the water in its natural state, and if the defendant polluted the same, so as to render it unfit for use, he was ¹⁰ liable in an action for damages, unless he had acquired an adverse right against the plaintiff by grant or prescription. Murgatroyd vs. Robinson, 7 Ellis & Bl.; 391; Dickinson vs. Grand Junction Canal Co., 7 Exch., 282; Wood vs. Waud, 3 Exch., 748; Embrey vs. Owen, 6 Exch., 353 ; Gardner vs. Trustees of Village of Newburgh, 2 Johns.

Ch., 162 . The plea avers that there was a right appurtenant to the mill, to use the water in the manufacture of paper, and that the plaintiff had acquiesced in the exercise of this right up to the time of the purchase of the mill by the defendant, but it does not aver a user, and acquiescence by the plaintiff, for a period of hoenty years. Where a prescriptive right to foul a stream is relied on, the plea should aver a continued and uninterrupted user for not less than twenty years. The fourth plea is also bad.

The fact that other mill owners had acquired such a prescriptive right, was no bar to the plaintiff’s right to recover as against the defendant for fouling the stream. The fifth plea is also defective. Every plea ought either to deny, or confess and avoid the facts stated in the declaration, and the averments in it ought to be direct and certain, and not ambiguous. The declaration expressly charges the defendant with fouling the stream, by throwing into it certain poisonous substances, and a plea of a prescriptive right to use the water for all reasonable purposes in the manufacture of paper, and that the defendant had so used it and had not used it in any other manner, does not expressly deny, nor does it directly confess and avoid the facts stated in the declaration.

It may be that by the methods and processes adopted for the manufacture of paper, at the time when the prescriptive right thus relied on was acquired, the reasonable use of the stream for all the purposes of such manufacture did not foul the stream; whereas by another and different process adopted by the ¹¹ defendant, and such as is now usual and customary in the manufacture of paper, the reasonable use of the water for the purposes of such manufacture may necessarily foul the water. If the defendant intended to rely upon a prescriptive right to foul the stream, such a right ought to have been pleaded in direct and unambiguous terms, and in the absence of such a plea, the averment of a right to use it for all reasonable purposes in the manufacture of paper, ought to be construed as a right to use the water in a manner not injurious to other proprietors. The demurrer to the sixth plea was also properly sustained. If it be conceded that other mill owners had acquired the right to foul the stream, such a right, as we have before said, was no bar to this action; and the averment that the defendant conducted his business in the usual manner and with reasonable care, is no answer to a declaration which charges him with fouling a stream to the use of which the plaintiff was entitled.

The demurrer it is true, reaches back to the first fault in pleading, but we have not been able after a careful examination, to find any such delect in the plaintiff’s declaration, as would have justified the Court in overruling the demurrer interposed by him. The first count charges, that the defendant broke and entered certain land of the plaintiff, situate near Parkton, Baltimore County. This we think is a sufficient averment that the locus in quo is in Baltimore County. For these reasons, we are of opinion that the demurrer was properly sustained.

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