‘STATE OF MISSOURI, Complainant,

v.

STATE OF ILLINOIS and The Sanitary District of Chicago, Defts.

(See S. C. Reporter's ed. 496-526.)

Controversy between states — injunc¬

tive relief against drainage of sew¬ age into water coarse. — The discharge in¬ to the Mississippi river, through an artificial drainage canal, of the sewage of Chicago, mixed with a large volume of pure water from Lake Michigan, will not be enjoined by the Federal Supreme Court on complaint by the state of Missouri that the result of such action is to poison the water supply of its in¬ habitants, where the evidence, though dis¬ closing an increase in the deaths from ty¬ phoid fever in St. Louis, leaves it doubtful whether the typhoid bacillus can and does survive the journey and reach the intake of St. Louis in the Mississippi, and shows other possible sources of infection in the discharge of sewage above the St. Louis intake from other towns and cities, some of which are situated in Missouri.

[No. 4, Original.]

Argued January 2, 3, 7/, 1906. Decided Feb¬ ruary 19, 1906.

ORIGINAL suit by the state of Missouri to restrain the discharge of the sewage of Chicago through an artificial drainage canal into the Mississippi river. Bill dis¬ missed without prej'udice.

See same case on demurrer, 180 U. S. 208, 45 L. ed. 497, 21 Sup. Ct. Rep. 331.

The facts are stated in the opinion.

Messrs. Sam B. Jeffries, Charles W. Bates, and Herbert S. Hadley argued the cause and filed a brief for complainant:

The inhabitants of a large and populous city have the right to use the water of the stream upon which the city is situated in its natural condition, free from infectious

Note. — On the pollution of water courses — see note to Travis Placer Min. Co. v. Mills, 37 C. C. A. 538.

As to right of municipal corporation to drain sewage into waters — see note to Platt Bros. v. Waterbury, 48 L.R.A. 691.

572

materia] deposited into it at points above. If the discharge of infectious sewage and filth in the stream renders the waters dan¬ gerous and harmful to the people living be¬ low, such municipality or person creating the nuisance and causing the danger or damage may be enjoined from continuing the infectious discharges.

30 Am. & Eng. Enc. Law, 2d ed. p. 378; Indianapolis Water Co. v. American Straw- board Co. 57 Fed. 1000; Trevett v. Prison Asso. 98 Va. 332, 50 L.R.A. 564, 81 Am. St. Rep. 727, 36 S. E. 373; Atty. Gen. v. Birmingham, 4 Kay & J. 528; Platt Bros. v. Waterbury, 72 Conn. 531, 48 L.R.A. 691, 77 Am. St. Rep. 335, 45 Atl. 154; Wood, Nuisances, 3d ed. §§ 427-579.

Where there are several contributing causes of the pollution and infection of a water course, one cannot escape liability for those living below and using the waters for domestic purposes, because of such pol¬ lution by themselves. Eliminating from the case the fact that Chicago is situated upon the natural watershed of Lake Michi¬ gan, while complainant is situated upon the natural watershed of the Mississippi, and even though it be assumed that the same rights with reference to the disposal of its sewage belong to Chicago as to any other city upon the natural watershed of the Illinois river, it cannot be claimed by the defendants that they have the right to pol¬ lute the waters of the Mississippi because there are other cities situated upon its wa¬ tershed which contribute to the pollution after or before the water reaches the Mis¬ sissippi at Grafton.

Crossley v. Lightowler, L. R. 2 Ch. 478; Tennessee Coal t Iron d R. Co. v. Hamilton, 100 Ala. 252, 46 Am. St. Rep. 48, 14 So. 167 ; Watson v. Neio Milford, 72 Conn. 561, 77 Am. St. Rep. 345, 45 Atl. 167; 30 Am. & Eng. Enc. Law, p. 383; Hill v. Smith, 32 Cal. 167; Little Schuylkill Nav. R. d Coal Co. v. Richards, 57 Pa. 142, 98 Am. Dec. 211; Ferguson v. Firmenicli Mfg. Co. 77 Iowa, 579, 14 Am. St. Rep. 319, 42 N. W. 448.

The fact that Peoria, Pekin, Havana, La¬ Salle, Beardstown, and Joliet sewer into the Illinois river does not constitute the right of defendants likewise to discharge the sewage from the city of Chicago into the Illinois river.

Nolan v. New Britain, 69 Conn. 668, 38 Atl. 703; Wheeler v. Fisher Oil Co. 9 Oftio S. & C. P. Dec. 294; Jackman v. Arling¬ ton Mills, 137 Mass. 277 ; Morgan v. Dan¬ bury, 67 Conn. 484, 35 Atl. 499; Fahnes¬ tock v. Feldner, 98 Md. 335, 56 Atl. 785.

The right to continue a public nuisance cannot be acquired by prescription.

Wright v. Moore, 38 Ala. 598, 82 Am.

200 U. S.

Missoubi v. Illinois.

Dec. 731; Goldsmid v. Tunbridge Wells Jmprov. Comrs. L. R. 1 Eq. 167 ; Mills v. Hall, 9 Wend. 316, 24 Am. Dec. 160; Atty. Gen. v. Revere Copper Co. 152 Mass. 452,

9 L.R.A. 510, 25 N. E. 605; Com. v. Upton,

6 Gray, 473; Morton v. Moore, 15 Gray, 573 ; New Salem v. Eagle Mill Co. 138 Mass. 8; State v. Rankin, 3 S. C. N. S. 448, 16 Am. Rep. 737.

No one has the right to increase the vol¬ ume or hasten the flow of a stream against the wish and will of lower riparian own¬ ers. and especially is this true when dam¬ age or injury either results or is likely to result.

2 Farnham, Waters, 1052; Ward v. Peck, 49 N. J. L. 42, 6 Atl. 805.

Such an act is a trespass which may be resisted by the injured party, and for that purpose all the machinery of law 13 at his service.

Farnham, Waters, p. 487 ; East Jersey Water Co. v. Bigelow, 60 N. J. L. 207, 38 Atl. 63i ; Wood, Nuisances, pp. 499, 500; Tillolson v. Smith, 32 N. H. 90, 64 Am. Dec. 355; Gerrish v. New Market Mfg. Co. 30 N. H. 478; Plattsmouth Water Co. v. Smith, 57 Neb. 579, 78 N. W. 275; Evans v. Merriweather, 4 Ill. 492, 38 Am. Dec. 106 : TcnEyck v. Delaware & R. Canal Co. 18 N. J. L. 200, 37 Am. Dec. 232; Miller v. Miller, 23 Me. 22, 39 Am. Dec. 597; Norton v. Volentine, 14 Vt. 239, 39 Am. Dec. 220; Elliot v. Fitchburg, 10 Cush. 191, 57 Am. Dec. 85; Newhall v. Ireson, 8 Cush. 595, 54 Am. Dec. 794.

Complainant is not estopped by laches. Wood, Nuisances, § 806.

Decisions based upon the question of equitable estoppel or laches must be held to be inapplicable, for the reason that they apply more generally to questions affect¬ ing private nuisances, rather than those of public concern.

Mills v. Hall, Com. v. Upton, Atty. Gen. v. Revere Copper Co., and State v. Ran¬ kin. supra; 1 Chitty, Crim. Law, 160; New Salem, v. Eagle Mill Co. supra; Burke v. People, 23 Ill. App. 36; Hoadley v. Peo¬ ple, 23 Ill. App. 39; Gould, Waters, 3d ed. § 121, p. 236, §§ 212, 532; Cross v. Morristown. 18 N. J. Eq. 305; People v. Cunningham, 1 Denio, 536, 43 Am. Dec. 709 ; Waterloo v. Union Mill Co. 72 Iowa, 438, 34 N. W. 197; Rhodes v. Whitehead, 27 Tex. 304, 84 Am. Dec. 631; Jersey City v. Morris Canal & Blcg. Co. 12 N. J. Eq. 548; Dygert v. Schenck, 23 Wend. 446, 35 Am. Dec. 575; Weld v. Hornby, 7 East,

195‘ . - An upper riparian owner has no rignt,

by emptying into a stream an artificial sup¬ ply of water, or the water of another water course, so as to increase the amount of wa-

200 U. S.

ter in the stream, so to injure a lower ri¬ parian owner; and where the water is pond¬ ed by a dam, the owner has no right, by discharging the contents of the pond, to increase the flow of the water course beyond its ratural capacity, to the injury of the lower proprietors.

30 Am. & Eng. Enc. Law, 2d ed. p.

Every riparian owner is entitled to have the water course flow by his land in an un¬ polluted condition, and one riparian owner has no right unreasonably to corrupt or pollute its waters to such an extent as es¬ sentially to impair its purity.

Indianapolis Water Co. v, American Strawboard Co. 53 Fed. 970; Leiois v. Stein, 16 Ala. 214, 50 Am. Dec. 179.

The above rule is applicable to riparian owners, and much stronger must be its ap¬ plication when applied to those persons who do not reside upon the watershed of the stream in question.

Atty. Gen. v. Hackney, L. R. 20 Eq.

A city may be enjoined from discharging its sewage into a running stream by a ripa¬ rian owner below the point of discharge.

Dunght v. Hayes, 150 Ill. 273, 41 Am. St. Rep. 367, 37 N. E. 218; Gould, Wa¬ ters, § 546.

If this doctrine can be enforced against a municipality located upon a watershed of a stream involved, much greater is the reason and necessity of enforcing it as against the objectionable conduct of a mu¬ nicipality located upon an adjacent water¬ shed, wherein an attempt is made to divert the sewage and filth from the basin prepared by nature for it into the adjoining drain¬ age basin, thereby compelling the inhabi¬ tants residing upon a neighboring water¬ shed to be subjected to the inconvenience and annoyance of the waste, filth, and ob¬ jectionable refuse of their unnatural neigh¬ bors.

See Spence v. McDonough, 77 Iowa, 460, 42 N. W. 371; Ferguson v. Firmenich Mfg. Co. 77 Iowa, 576, 14 Am. St. Rep. 319, 42 N. W. 448.

In Harris v. Mackintosh, 133 Mass. 228, the court held that the owner of land on a natural stream may maintain a bill in equity to restrain another landowner on such stream from carrying on business in such a way as to pollute the water of the stream, to the injury of plaintiff.

In Grey ex rel. Simmons v. Paterson, 58 N. J. Eq. 1, 42 Atl. 749, the following propositions were determined:

1st. Owners of land on the banks of a stream are entitled to have the water flow to them unpolluted.

2d Pollution of a river by the dicharge

573

Supreme Court of tue United States.

of city sewage gathered from a large area, and caused to flow into the stream by arti¬ ficially constructed grades, cannot be jus¬ tified as a natural and reasonable use of the river.

3d. The public act authorizing a city to discharge its sewage according to maps ex¬ hibiting sewer outlets, etc., does not license a city in discharging such quantities of sewage as will pollute the river.

4th. Riparian owners who sue to restrain a city from discharging sewage into a river as soon as the sewage begins to contami¬ nate the waters are not guilty of laches.

Every man must so use his own property as not to injure that of his neighbor, and the fact that he has invested much money and employs many men in carrying on a lawful and useful business upon his land does not change the rule, or permit him per¬ manently to prevent a material portion of the water of a natural stream from flowing over the land of a lower riparian owner, or to so pollute the rest of the stream as to render it unfit for ordinary use.

When one riparian proprietor, by his use, causes deterioration of the water of a nat¬ ural stream, the fact that others are using it in the same manner, instead of prevent¬ ing relief, may require it; and. even if the damages are slight, where the act com¬ plained of is such that by its repetition or continuance it may become the foundation or evidence of an adverse right, a court of equity will interpose by injunction.

Strobel v. Kerr Salt Co. 164 N. Y. 304, 51 L.R.A. 687, 79 Am. St. Rep. 643, 58 N. E. 142.

A person owning land has no right to rid it of surface water by collecting it in arti¬ ficial channels and discharging it through or upon the land of an adjoining proprie¬ tor. This rule is alike under the common and civil law.

Gould, Waters, § 271.

Defendants were without authority to construct the canal in question for the pur¬ pose, r*' fiioohorn’inar the sewasre of the great city of Chicago into the Illinois and Mis¬ sissippi rivers, and thereby burdening the people of the Mississippi valley with the elements of danger to life, health, and so¬ ciety, contrary to the plan which nature has devised.

Anderson v. Henderson, 124 Ill. 164, 16 N. E. 232 ; Dayton v. Drainage Comrs. 128 Ill. 271, 21 N. E. 198; Jackman v. Arling¬ ton Mills, 137 Mass. 277; White v. Chapin , 12 Allen, 516; Curtis v. Eastern R. Co. 98 Mass. 428; Carter v. Thurston, 58 N. H. 104, 42 Am. Rep, 584; Noonan v. Albany, 79 N. Y. 470, 35 Am. Rep. 540 ; McCor¬ mick v. Horan, 81 N. Y. 86, 37 Am. Rep. 479 ; Barkley v. Wilcox, 86 X. Y. 140, 40 574

Oct. Term,

Am. Rep. 519; Hughes v. Anderson, 68 Ala. 280, 44 Am. Rep. 147.

The defendants occupy the position of absolute strangers, — trespassers, — having no rights in common to use the waters of the Mississippi for any purpose whatever, applicable to the law relating to riparian ownership, it having been held that the law with reference to riparian ownership and the use of a stream by persons residing up¬ on its banks, or upon its watershed, applies alike to persons, individuals, and public municipal corporations.

Gould, Waters, 272; Plummer v. Sturte- vant, 32 Me. 325; New Albany v. Lines, 21 Ind. App. 380, 51 N. E. 346; O’Brien v. St. Paul, 25 Minn. 331, 33 Am. Rep. 470; Au¬ rora v. Love, 93 Ill. 521.

Equity will not refuse to protect one in the possession and enjoyment of his prop¬ erty merely because his right is less val¬ uable to him than the power to destroy it may be to another or the public.

Sullivan v. Jones & L. Steel Co. 208 Pa. 540, 66 L.R.A. 712, 57 Atl. 1065.

All that is necessary — all that courts or defendants can reasonably ask — is that complainant make out a clear case, show¬ ing the injury inflicted, or the injury im¬ pending and about to fall. With such show¬ ing relief is always granted.

Lam beau v. Lewinski, 47 Ill. App. 656 ; Owen v. Phillips, 73 Ind. 284; Mirkil v. Morgan, 134 Pa. 144, 19 Atl. 628; Hols- man v. Boiling Spring Bleaching Co. 14 N. J. Eq. 335; Powell v. Bentley & O. Furni¬ ture Co. 34 W. Va. 804, 12 L.R.A. 53, 12 S. E. 1085.

Where a nuisance is permanent, continu¬ ous, or constantly recurring, legal remedy is obviously inadequate, and the interfer¬ ence of a court of equity is necessary to pre¬ vent irreparable injury or a multiplicity of suits.

Nininger v. Norwood, 72 Ala. 277, 47 Am. Rep. 412; Hamilton v. Whitridge, 11 Md. 128, 69 Am. Dec. 184.

Where a city emptied sewage on plain¬ tiff’s land, thereby rendering his building unfit for inhabitation, it was held that he was not obliged to bring an action at law to abate the nuisance, but was entitled to an injunction.

Beach v. Elmira, 22 Hun, 158.

The opinions of witnesses contrary to physical facts and natural conditions and causes must be disregarded.

Stale v. Cross, 68 Iowa, 180, 26 N. W. 62; People v. Augsbury, 97 N. Y. 501; Underhill, Ev. §§ 189, 190.

When the opinion of an expert witness is not founded on facts explained in evi¬ dence, or applicable to the case at band,

200 U. S.

Missouri v. Illinois.

such an opinion is merely speculative, and should not be considered.

Storey v. Union Bank, 34 Ala. 687 ; Ebos v. State, 34 Ark. 520.

The opinion of experts must always be disregarded when contrary to established laws of nature, or contrary to facts admit¬ ted as true, or facts established. Such tes¬ timony is speculative, and never relevant or admissible for any purpose.

Filer v. Neio York C. R. Co. 49 N. Y. 42, 10 Am. Rep. 327 ; Strohm v. New York, L. E. d IF. R. Co. 96 N. Y. 305; Tozer v. New York C. d H. R. R. Co. 105 N. Y. 617, 11 N. E. 369; Turner v. Newburgh, 109 N. Y. 301, 4 Am. St. Rep. 453, 16 N. E. 344; Collins v. Janesville, 99 Wis. 464, 75 N. W. 88; Block v. Milwaukee Street R. Co. 89 Wis. 371, 27 L.R.A. 365, 46 Am. St. Rep. 849, 61 N. W. 1101; Hopt v. Utah, 120 U. S. 430, 30 L. ed. 708, 7 Sup. Ct. Rep. 614; Brown v. United States , 113 U. S. 569, 28 L. ed. 1079, 5 Sup. Ct. Rep. 648.

Expert opinions of witnesses cannot pre¬ vail against established evidence.

Highfill v. Missouri P. R. Co. 93 Mo. App. 219; Gorman v. St. Louis Transit Co. 96 Mo. App. 608, 70 S. W. 731.

The opinion of defendants’ witnesses, be- in<T contrary to well-established scientific truths, must be disregarded by the court, being founded upon unsatisfactory data, so scanty that the witnesses’ alleged infer¬ ence should at once be pronounced absurd and extreme.

Wigmore, Ev. § 659.

The opinion of lay witnesses as to the value of the water for domestic purposes should be excluded.

Wigmore, Ev. §§ 1917, 1924; McLean v. State, 16 Ala. 679; Atlanta Street R. Co. v. 'Walker, 93 Ga. 462, 21 S. E. 48; At¬ lanta Consol. Street R. Co. v. Bagwell, 107 Ga. 157, 33 S. E. 191 ; 7Ann v. Rice, 101 Mass. 571, 37 N. E. 747; Lewis v. Bell, 109 Mich. 189, 06 N. W. 1091; Gray v. Brooklyn Heights R. Co. 175 N. Y. 448, 67 N. E. 899; Dushane v. Benedict, 120 U. S. 647, 30 L. ed. 814, 7 Sup. Ct. Rep. 696; Wigmore, Ev. § 10; Shaw v. Susquehanna Boom Co. 125 Pa. 324, 17 Atl. 426; Little Rock & Ft. S. R. Co. v. Bruce, 55 Ark. 65, 17 S. W. 363; State v. Punshon, 133 Mo. 55, 34 S. W. 25; Pfau v. Alteria, 23 Misc. 693, 52 N. Y. Supp. 88; 1 Elliott, Ev. §§ 673, 674.

Messrs. Herbert S. Hadley, N. T. Gentry, Charles W. Bates, W. F. Woerner, and Sam B. Jeffries also filed a brief for complainant.

Mr. James Todd argued the cause, and, with Messrs. IF. IT. Stead, Howland J. HamVv. and John G. Drcnnan. filed a brief for the Sanitary District of Chicago:

200 U. S.

A party may, by laches, deprive himself of an equitable remedy against a nuisance.

2 Wood, Nuisances, §§ 804-806; Gould, Waters, §§ 530, 533.

It is the well-established doctrine of the Supreme Court of the United States that laches on the part of the complainant is a bar to the granting of equitable relief. This is especially so where the lack of diligence on the part of the complainant has led the defendant to place nimself in a position from which he cannot escape or recede with¬ out great loss and inconvenience.

The question of laches does not depend, as does the statute of limitations, upon the fact that a certain definite time has elapsed since the cause of action accrued, but wheth¬ er, under all the circumstances of the par¬ ticular case, plaintiff is chargeable with a want of due diligence in failing to insti¬ tute proceedings before he did so.

McIInight v. Taylor, 1 How. 168, 11 L. ed. 89; Badger v. Badger, 2 Wall. 87, 17 L. ed. 836,- Twin-Lick Oil Co. v. Marbury, 91 U. S. 587, 23 L. ed. 328; Hayward v. Eliot Nat. Bank, 96 U. S. 611, 24 L. ed. 855; Harwood v. Cincinnati d C. Air-Line

R. Co. 17 Wall. 79, 21 L. ed. 558; Speidel v. Henrici, 120 U. S. 377, 30 L. ed. 718, 7 Sup. Ct. Rep. 610; Galliher v. Cadwell, 145 U. S. 368, 36 L. ed. 738, 12 Sup. Ct. Rep. 873; Hammond v. Hopkins, 143 U. S. 224,

36 L. ed. 134, 12 Sup. Ct. Rep. 418; Wil¬ lard v. Wood, 164 U. S. 502, 41 L. ed. 531, 17 Sup. Ct. Rep. 176; Sullivan v. Portland d K. R. Co. 94 U. S. 806, 24 L. ed. 324; Lansdale v. Smith, 106 U. S. 391, 27 L. ed. 219, 1 Sup. Ct. Rep. 350: Lane d B. Co. v. Locke, 150 U. S. 193, 37 L. ed. 1049, 14 Sup. Ct. Rep. 78; Mackdll v. Casilear, 137 U. S. 556, 34 L. ed. / 76, 11 Sup. Ct. Rep. 178; Whitney v. Fox, 166 U.

S. 637, 41 L. ed. 1145, 17 Sup. Ct. Rep. 713; Gildersleeve v. New Mexico Min. Co. 161 U. S. 573, 40 L. ed. 812, 16 Sup. Ct. Rep. 663; Ware v. Galveston City Co. 146 U. S. 102, 36 L. ed. 904, 13 Sup. Ct. Rep. 33; Foster v. Mansfield, C. d L. M. R. Co. 146 U. S. 88, 36 L. ed. 899, 13 Sup. Ct. Rep. 28 ; Hoyt v. Latham, 143 U. S. 553, 36 L. ed. 259, 12 Sup. Ct. Rep. 568 ; Hanner v. Moulton, 138 U. S. 486, 34 L. ed. 1032, 11 Sup. Ct. Rep. 408; Richards v. Mackdll, 124 U. S. 183, 31 L. ed. 396, 8 Sun. Ct. Rep. 437; Roberts v. Northern P. R. Co. 158 U. S. 1, 39 L. ed. 873, 15 Sup. Ct. Rep. 756; Brown v. Buena Vista County, 95 U. S. 157, 160. 161, 24 L. ed. 422, 423; John¬ ston v. Standard Min. Co. 148 U. S. 360,

37 L. ed. 480, 13 Sup. Ct. Rep. 585: Bar¬ nard v. Sherley, 135 Ind. 547, 24 L.R.A. 568, 41 Am. St. Rep. 454, 34 N. E. 600, 35 N. E. 117.

Equity will not interfere to aid a plain-

575

Supreme Court of the United States.

Oct. Term,

tiff who has stood by in silence, ahd has acquiesced impliedly in the expenditure of large sums of money by the defendant in the belief that his work was rightful and would never be interfered with.

High, Inj. §§ 618, 643, 884, 885; Wen¬ dell v. Van Rensselaer, 1 Johns. Ch. 344; Dougrey v. Topping, 4 Paige, 94; Town v. Needham, 3 Paige, 546, 24 Am. Dec. 246; Blanchard v. Doering, 23 Wis. 200 ; Sprague v. Steere, 1 R. I. 247 ; Patterson v. Hewitt, 11 N. M. 1, 55 L.R.A. 658, 66 Pac. 552; Swain v. Seamens, 9 Wall. 254, 273, 274,

19 L. ed. 554, 560; 2 Pom. Eq. Jur. §§ 816- 821, p. 2; Niven v. Bellcnap, 2 Johns. 573; Bassett v. Salisbury Mfg. Co. 47 N. H. 426; Bliss v. Prichard, 67 Mo. 181; Landrum v. Union Banic, 63 Mo. 48; Atty. Gen. ex rel. Easton v. New York d L. B. R. Co. 24 N. J. Eq. 49.

A court of equity will refuse to grant an injunction when it appears that greater injury and inconvenience will be caused to the defendant by granting the injunction than will be caused to the complainant by refusing it.

10 Am. & Eng. Enc. Law, 2d ed. pp. 363, 364; Edwards v. Alloucz Min. Co. 33 Mich. 46, 31 Am. Rep. 301; Clifton Iron Co. v. Dye, 87 Ala. 468, 6 So. 192 ; Richards’s Appeal, 57 Pa. 114, 98 Am. Dec. 202; Hall v. Rood, 40 Mich. 46, 29 Am. Rep. 528; Campbell v. Seaman, 63 N. Y. 568,

20 Am. Rep. 567 ; Barnard v. Gibson, 7 How. 650, 12 L. ed. 857.

If the complainant contributes to the conditions which it claims in its bill will injure it as a state, it cannot obtain equi¬ table relief.

Harrington v. Bigelow, 11 Paige, 349; Gould, Waters, § 219, p. 433; Ferguson v. Firmenich Mfg. Co. 77 Iowa, 576, 14 Am. St. Rep. 319, 42 N. W. 448; Cassady v. Cavenor, 37 Iowa, 300; Richards v. Wau- pun, 59 Wis. 45, 17 N. W. 975; Mowday v. Moore, 133 Pa. 598, 19 Atl. 626; Comstock v. Johnson, 46 N. Y. 615; Creath v. Sim.s, 5 IIow. 192, 12 L. ed. Ill ; Sample v. Barnes, 14 How. 70, 14 L. ed. 330; Palmer v. Har¬ ris, 60 Pa. 156, 100 Am. Dec. 557 ; Parlett v. Guggenheimer, 67 Md. 542, 1 Am. St. Rep. 416, 10 Atl. 81; 1 Spelling, Extr. Relief; Jacksonville v. Doan, 14,^ Ill. 23, 33 N. E. 878; Topeka Water Supply Co. v. Potwin. 43 Kan. 408, 23 Pac. 578.

Municipal corporations are agencies of the state.

Com. v. Plaisted, 2 L.R.A. 142, note, 148 Mass. 375, 12 Am. St. Rep. 566, 19 N. E. 224; United States v. Baltimore d O. R. Co. 17 Wall. 322, 21 L. ed. 597; Rogers v. Burlington. 3 Wall. 654, 18 L. ed. 79; Meriwether v. Garrett, 102 U. S. 472, 26 L. ed. 197 ; Tippecanoe County v. Lucas, 576

93 U. S. 108, 23 L. ed. 822 ; Chicago v. Chicago League Ball Club, 196 Ill. 59, 89 Am. St. Rep. 243, 63 N. E. 695; Holmes v. Mattoon, 111 Ill. 30, 53 Am. Rep. 602; Straus v. Com. 1 Duv. 149; State v. Crutch¬ er, 2 Swan, 504; Piper v. Richardson. 9 Met. 155; Soady v. Wilson, 3 Ad. & El. 248.

Mr. Howland J. Hamlin argued the cause, and, with Messrs. John G. Drmnan, W. H. Stead, and James Todd, filed a brief for the state of Illinois:

Municipal authorities have the power to construct and maintain sewerage systems for the health and comfort of the inhabi¬ tants thereof, and may discharge the same into navigable streams and waters. It was and is a lawful act of the city of Chicago to discharge its sewers into the Chicago riv¬ er and the branches thereof.

10 Am. & Eng. Enc. Law, 2d ed. pp. 248, 249, and notes; Merrifield v. Worcester, 110 Mass. 216, 14 Am. Rep. 592; Strobel v. Kerr Salt Co. 164 N. Y. 303, 51 L.R.A. 6S7, 79 Am. St. Rep. 643, '58 N. E. 142; Valparaiso v. Hagen, 153 Ind. 337, 48 L.R.A. 707, 74 Am. St. Rep. 305, 54 N. E. 1062; Hayes v. Waldron, 44 N. H. 580. 84 Am. Dec. 105; Lockwood Co. v. Laiorence, 77 Me. 297, 52 Am. Rep. 763; Tennessee Coal, Iron, d R. Co. v. Hamilton, 100 Ala. 252, 46 Am. St. Rep. 48, 14 So. 167: Cary v. Daniels, 8 Met. 466, 41 Am. Dec. 532; Townsend v. Bell, 42 App. Div. 409, 59 N. Y. Supp. 203 ; Red River Roller Mills v. Wright , 30 Minn. 249, 44 Am. Rep. 194, 15 N. W. 167 ; Hazeltine v. Case, 46 Wis. 391, 32 Am. Rep. 715, 1 N. W. 66; Greene v. Nunnemacher, 36 Wis. 50; Pennsylvania Coal Co. v. Sanderson, 113 Pa. 126, 57 Am. Rep. 445, 6 Atl. 453 ; Morgan v. Danbury, 67 Conn. 484, 35 Atl. 499; Noonan v. Al¬ bany, 79 N. Y. 470, 35 Am. Rep. 540; TFes- ton Paper Co. v. Pope, 155 Ind. 394, 56 L.R.A. 899, 57 N. E. 719; Richmond v. Test, 18 Ind. App. 482, 48 N. E. 610; Val¬ paraiso v. Hagen, supra; Barnard v. Sher- ley, 135 Ind. 547, 24 L.R.A. 568, 41 Am. St. Rep. 454, 34 N. E. 600, 35 N. E. 117; Joplin Consol. Min. Co. v. Joplin, 124 Mo. 129, 27 S. W. 406.

The acts of Congress of 1822 and 1827 duly authorized the state of Illinois to con¬ nect, by means of a canal, the waters of Lake Michigan with the waters of the Il¬ linois river. Therefore the connection of the same and the waters thereof, as done, was a lawful act.

Wisconsin v. Duluth, 96 U. S. 379, 24 L. ed. 668.

In an action of this kind, where each party produces the evidence of a reasonable number of reputable experts, equally schooled in the questions of science at is¬ sue, and such evidence shows an irrecon*

200 U. S.

Missouri v. Illtuots.

517, 518

cilable conflict, the evidence of numerous nonexpert witnesses (especially if uncon¬ tradicted), who. from personal experience by the actual use of the water, testify that, before and after the alleged contamination complained of, they continuously used the water for drinking and other domestic uses, and for the making of steam and other manufacturing purposes, and that since the doing of the acts complained of the water has been improved for such and all other purposes, the evidence of such nonexpert witnesses is of more weight than that of such experts, and should control the decision of the case.

Neicark Aqueduct Board v. Passaic, 45 N. J. Eq. 393, 18 Atl. 106; Rouse v. Mar¬ tin, 75 Ala. 514, 51 Am. Rep. 463; Laugh- lin v. Lamasco City, 6 Ind. 223; 1 Wood, Nuisances, §§ 539, 540, p. 732; 1 Wig- more, Ev. (1904) § 568.

An injunction to restrain a nuisance will issue only in cases where the fact of nui¬ sance is made out upon determinate and satisfactory evidence. If the evidence is conflicting, and the injury doubtful, such conflict and doubt will be ground for with¬ holding an injunction. Where interposi¬ tion by injunction is sought to restrain that which it is apprehended will create a nuisance of which its complainant may com¬ plain, the proofs must show such a state of facts as will manifest the danger to be real and immediate.

Missouri v. Illinois, 180 U. S. 248, 45 L. ed. 515, 21 Sup. Ct. Rep. 331; 2 Story, Eq. Jur. 13th ed. §§ 924, 924a; 1 Wood, Nuisances, § 539, p. 732; Columbia Ave. Sav. Fund, S. D. Title & T. Co. v. Prison Commission, 92 Fed. SOI ; Parker v. TF-in- nipiseogee Lake Cotton & Woolen Co. 2 Black, 545, 553, 17 L. ed. 333, 337 ; District Attorney v. Lynn & B. R. Co. 16 Gray, 245; Robb v. LaGrange, 158 Ill. 21, 42 N. E. 77 ; Springer v. Walters, 139 Ill. 419, 28 N. E. 761; Gallagher v. Flury, 99 Md. 181, 57 Atl. 672; Manchester v. Smyth, 64 N. II. 380, 10 Atl. 700; Powell v. Bentley & G. Furniture Co. 34 W. Va. 804, 12 L.R.A. 53, 12 S. E. 1085; Dunn v. Austin, 77 Tex. 139, 11 S. W. 1125; Rouse v. Martin, supra.

Mr. Justice Holmes delivered the opinion of the court:

This is a suit brought by the state of Missouri to restrain the discharge of the sewage of Chicago through an aitificial channel into the Desplaines river, in the state of Illinois. That river empties into the Illinois river, and the latter empties into the Mississippi at a point about 43 miles above the city of St. Louis. It was alleged in the bill that the result of the 2G0 U. S.

threatened discharge would be to send 1,500 tons of poisonous filth daily into the Missis¬ sippi, to deposit great quantities of the same upon the part of the bed of the last- named river belonging to the plaintiff, and so to poison the water of that river, upon which various of the plaintiff’s cities, towns, and inhabitants depended, as to make it unfit for drinking, agricultural, or man¬ ufacturing purposes. It was alleged that the defendant sanitary district was acting in pursuance of a statute of the. state of Illinois, and as an agency of that state.

The case is stated at length in 180 U. S.

208, 45 L. ed. 497, 21 Sup. Ct. Rep. 331, where a demurrer to the bill was overruled.

A supplemental bill alleges that since the filing of the original bill the drainage canal has been opened and put into operation, and has produced and is producing all the evils which were apprehended when the injunction first was asked. The answers deny the plaintiff’s case, allege that the new plan sends the water of the Illinois river into the Mississippi much purer than it was before, that many towns and cities of the plaintiff along the Missouri and Mis¬ sissippi discharge their sewage into those rivers, and that if there is any trouble the plaintiff must look nearer home for the cause.

The decision upon the demurrer dis¬ cussed mainly the jurisdiction of the court, and, as leave to answer was given when the demurrer was overruled, naturally there was no very precise consideration of the principles of law to be applied if the plaintiff should prove its case. That was left to the future, *with the general intima-

tion that the nuisance must be made out upon determinate and satisfactory evidence, that it must not be doubtful, and that the danger must be shown to be real and imme¬ diate. The nuisance set forth in the bill was one which would be of international importance, — a visible change of a great river from a pure stream into a polluted and poisoned ditch. The only question pre¬ sented was whether, as between the states of of the Union, this court was competent to deal with a situation which, if it arose between independent sovereignties, might lead to war. Whatever differences of opin¬ ion there might be upon matters of detail, the jurisdiction and authority of this court to deal with such a case as that is not open to doubt. But the evidence now is in, the actual facts have required for their es¬ tablishment the most ingenious experiments, and for theif interpretation the most subtle speculations, of modern science, and there¬ fore it becomes necessary at the present stao-e to consider somewhat more nicely than

577

518-520

Supreme Court of the United States.

Oct. Term.

heretofore how the evidence in it is to be approached.

The first question to be answered wa3 put in the well known case of the Wheel¬ ing, bridge. Pennsylvania v. Wheeling <f B. Bridge Go. 13 How. 518, 14 L. ed. 249. In that case, also, there was a bill brought by a state to restrain a public nuisance, — the erection of a bridge alleged to obstruct navigation, — and a supplemental bill to abate it after it was erected. The question was put most explicitly by the dissenting judges, but it was accepted by all as fun¬ damental. The Chief Justice observed that if the bridge was a nuisance, it was an of¬ fense against the sovereignty whose laws had been violated, and he asked what sov¬ ereignty that was. 13 How. 561, 14 L. ed. 267 ; Daniel, J., 13 How. 599, 14 L. ed. 283. See also Kansas v. Colorado, 185 U. S. 125, 46 L. ed. 838, 22 Sup. Ct. Rep. 552. It could not be Virginia, because that state had purported to authorize it by statute. The Chief Justice found no prohibition by the United States. 13 How. 580, 14 L. ed. 275. No third source of law was suggested by anyone. The majority accepted the Chief Justice’s postulate, and found an answer in what Congress had done.

It hardly was disputed that Congress

could deal with the ^matter under its power to regulate commerce. The majority ob¬ served that although Congress had not de¬ clared in terms that a state should not ob¬ struct the navigation of the Ohio by bridges, yet it had regulated navigation upon that river in various ways, and had sanctioned the compact between Virginia and Kentucky when Kentucky was let into the Union. By that compact the use and navigation of the Ohio, so far as the territory of either state lay thereon, was to be free and com¬ mon to the citizens of the United States. The compact, by the sanction of Congress, had become a law of the Union. A state law which violated it was unconstitutional. Obstructing the navigation of the river was said to violate it, and it was added that more was not necessary to give a civil remedy for an injury done by the obstruc¬ tion. 13 How. 565, 566, 14 L. ed. 268, 269. At a later stage of the case, after Congress had authorized the bridge, it was stated again in so many words that the ground of the former decision was that “the act of the legislature of Virginia afforded no authority or justification. It was in conflict with the acts of Congress, which were the para¬ mount law.” 18 How. 421, 429, 15 L. ed. 435, 436.

In the case at bar, whether Congress could act or not, there is no suggestion that it has forbidden the action of Illinois. The only ground on which that state’s con- 578

duct can be called in question is one which must be implied from the words of the Con¬ stitution. The Constitution extends the ju¬ dicial power of the United States to contro¬ versies between two or more states, and be¬ tween a state and citizens of another state, and gives this court original jurisdiction in cases in which a state shall be a party. Therefore, if one state raises a controversy with another, this court must determine whether there is any principle of law, and, if any, what, on which the plaintiff can recover. But the fact that this court must decide does not mean, of course, that it takes the place of a legislature. Some prin-. ciples it must have power to declare. For instance, when a dispute arises about bound¬ aries, this court must determine the line ; and, in doing so, must be governed by rules explicitly *or implicitly recognized. Rhodc

Island v. Massachusetts, 12 Pet. 657, 737,

9 L. ed. 1233, 1265. 1\ must follow and ap¬

ply those rules, even if legislation of one or both of the states seemS to stand in the way. But the words of the Constitution would be a narrow ground upon which to construct and apply to the relations between states the same system of municipal law in all its details which would be applied be¬ tween individuals. If we suppose a case which did not fall within the power of Congress to regulate, the result of a dec¬ laration of rights by this court would be the establishment of a rule which would be irrevocable by any power except that of this court to reverse its own decision, an amend¬ ment of the Constitution, or possibly an agreement between the States, sanctioned by the legislature of the United States.

The difficulties in the way of establish¬ ing such a system of law might not be insuperable, but they would be great and new. Take the question of prescription in a case like the present. The reasons on which prescription for a public nuisance is denied or may be granted to an individual as against the sovereign power to which he is subject have no application to an independ¬ ent state. See 1 Oppenheim, International Law, 293, §§ 242, 243. It would be con¬ tradicting a fundamental principle of hu¬ man nature to allow no effect to the lapse of time, however long (Davis v. Mills, 194 U. S.

451, 457, 48 L. ed. 1067, 1071, 24 Sup. Ct.

Rep. 692), yet the fixing of a definite time usually belongs to the legislature rather than the courts. The courts did fix a time in the rule against perpetuities, but the usual course, as in the instances of stat¬ utes of limitation, the duration of patents, the age of majority, etc., is to depend upon the lawmaking power.

It is decided that a case such as is made by the bill may be a ground for relief. The

200 U. S.

Missouri v. Illinois.

520-523

purpose of the foregoing observations is not to lay a foundation for departing from that decision, but simply to illustrate the great and serious caution with which it is necessary to approach the question whether a case is proved. It may be imagined that a nuisance might be created by a state upon a navigable river like the Danube, which

would ’amount to a casus belli for a state lower down, unless removed. If such a nuisance were created by a state upon the Mississippi, the controversy would be re¬ solved by the more peaceful means of a suit in this court. But it does not follow that every matter which would warrant a resort to equity by one citizen against another in the same jurisdiction equally would warrant an interference by this court with the ac¬ tion of a state. It hardly can be that we should be justified in declaring statutes or¬ daining such action void in every instance wThere the circuit court might intervene in a private suit, upon no other ground than an¬ alogy to some selected system of municipal law, and the fact that, we have jurisdiction over controversies betw-een states.

The nearest analogy would be found in those cases in which an easement has been declared in favor of land in one state over land in another. But there the right is rec¬ ognized on the assumption of a concurrence between the two states, the one, so to speak, offering the right, the other permitting it to be accepted. Mannville Go. v. Worcester, 138 Mass. 89, 52 Am. Rep. 261. But when the state itself is concerned, and by its legis¬ lation expressly repudiates the right set up, an entirely different question is presented.

Before this court ought to intervene, the case should be of serious magnitude, clearly and fully proved, and the principle to be applied should be one which the court is pre¬ pared deliberately to maintain against all considerations on the other side. See Kan¬ sas v. Colorado, 185 U. S. 125, 46 L. ed. 838, 22 Sup. Ct. Rep. 552.

As to the principle to be laid down, the caution necessary is manifest. It is a question of the first magnitude whether the destiny of the great rivers is to be the sewers of the cities along their banks or to be protected against everything which threatens their purity. To decide the whole matter at one blow by an irrevocable fiat would be at least premature. If we are to judge by what the plaintiff itself permits, the discharge of sewage into the Mississippi by cities and towns is to be expected. We believe that the practice of discharging into [5221 the river is ’general along its banks, except where the levees of Louisiana have led to’ a different course. The argument for the plaintiff asserts it to be proper within certain limits. These are facts to be con- 200 U. S.

sidered. Even in cases between individuals, some consideration is given to the practical course of events. In the black country of England parties would not be expected to stand upon extreme rights. St. Helen’s Smelting Go. v. Tipping, 11 H. L. Cas. 642.

See Boston Ferrule. Co. v. Hills, 159 Mass.

147, 150, 20 L. R. A. 844, 34 N. E. 85. Where, as here, the plaintiff has sovereign powers, and deliberately permits discharges similar to those of wjiich it complains, it not only offers a standard to which the defendant has the right to appeal, but, as some of those discharges are above the in¬ take of St. Louis, it warrants the defendant in demanding the strictest proof that the plaintiff’s own conduct does not produce the result, or at least so conduce to it, that courts should not be curious to ap¬ portion the blame.

We have studied the plaintiff’s statement of the facts in detail, and have perused the evidence, but it is unnecessary for the pur¬ poses of decision to do more than give the general result in a very simple way. At the outset we cannot but be struck by the con¬ sideration that if this suit had been brought fifty years ago it almost necessarily would have failed. There is no pretense that there is a nuisance of the simple kind that was known to the older common law. There is nothing which can be detected by the un¬ assisted senses, — no visible increase of filth, no new smell. On the contrary, it is proved that the great volume of pure water from Lake Michigan, which is mixed with the sewage at the start, has improved the Illinois river in these respects to a no¬ ticeable extent. Formerly it was sluggish and ill smelling. Now it is a comparatively clear stream to which edible fish have re¬ turned. Its water is drunk by the fisher¬ men, it is said, without evil results. The plaintiff’s case depends upon an inference of the unseen. It draws, the inference from two propositions. First, that typhoid fever has increased considerably since the change, and that other explanations ’have been dis-

proved; and second, that the bacillus of ty¬ phoid can and does survive the journey and reach the intake of St. Louis in the Mis¬ sissippi.

We assume the now-prevailing scientific explanation of typhoid fever to be correct.

But when we go beyond that assumption, everything is involved in doubt. The data upon which an increase in the deaths from typhoid fever in St. Louis is alleged are disputed. The elimination of other causes is denied. The experts differ as to the time and distance within which a stream would purify itself. No case of an epidemic caused by infection at so remote a source is brought forward and the cases which are

579

523-526

Supreme Court of the Unit*) States.

Oct. Term,

produced are controverted. The plaintiff obviously must be cautious upon this point, for, if this suit should succeed, many others would follow, and it not improbably would find itself a defendant to a bill by one or more of the states lower down upon the Mis¬ sissippi. The distance which the sewage has to travel (357 miles) is not open to debate, but the time of transit, to be in ferred from experiments with floats, is es¬ timated as varying from eight to eighteen and a half days, with forty-eight hours more from intake to distribution, and when corrected by observations of bacteria is greatly prolonged By the defendants. The experiments of the defendants’ experts lead them to the opinion that a typhoid bacillus could not survive the journey, while those on the other side maintain that it might live and keep its power for twenty-five days or more, and arrive at St. Louis. Upon the question at issue, whether the new discharge from Chicago hurts St. Louis, there is a categorical contradiction between the ex¬ perts on the two sides.

The Chicago drainage canal was opened on January 17, 1900. The deaths from typhoid fever in St. Louis, before and after that date, are stated somewhat differently in different places. We give them plainly from the plaintiff’s brief: 1890, 140; 1891, 165; 1892, 441; 1893, 215; 1894, 171; 1895, 106; 1896, 106; 1897, 125; 1898, 95; 1899, 131; 1900, 154; 1901, 181; 1902, 216; 1903,

the numbers *for the later years have been enlarged by carrying over cases which in earlier years would have been put into a miscellaneous column (intermittent, remit¬ tent, typho-malaria, etc., etc.), but we as¬ sume that the increase is real. Neverthe¬ less, comparing the last four years with the earlier ones, it is obvious that the ground for a specific inference is very narrow, if we stopped at this point. The plaintiff ar¬ gues that the increase must be due to Chi¬ cago, since there is nothing corresponding to it in the watersheds of the Missouri or Mississippi. On the other hand, the de¬ fendant points out that there has been no such enhanced rate of typhoid on the banks of the Illinois as would have been found if the opening of the drainage canal were the true cause.

Both sides agree that the detection of the typhoid bacillus in the water is not to be expected. But the plaintiff relies upon proof that such bacilli are discharged into the Chicago sewage in considerable quanti¬ ties : that the number of bacilli in the water of the Illinois is much increased, including the bacillus coli communis, which is ad¬ mitted to be an index of contamination, and that the chemical analyses lead to the 580

same inference. To prove that the typhoid bacillus could make the journey an experi¬ ment was tried with the bacillus prodi- giosus, which seems to have been unknown, or nearly unknown, in these waters. Alter preliminary trials, in which these bacilli emptied into the Mississippi near the mouth of the Illinois were found near the St. Louis intake and in St. Louis in times varying from three days to a month, one hundred and seven barrels of the same, said to con¬ tain one thousand million bacilli to the cubic centimeter, were put into the drainage canal near the starting point on November 6, and on December 4 an example was found at the St. Louis intake tower. Four others were found on the three following days, two 'at the tower and two at the mouth of the Illinois. As this bacillus is asserted to have about the same length of life in sun¬ light in living waters as the bacillus typho¬ sus, although it is a little more hardy, the experiment is thought to prove one element of the plaintiff’s case, although *the very

small number found in many samples of water is thought by the other side to indi¬ cate that practically no typhoid germs would get through. It seems to be conceded that the purification of the Illinois by the large dilution from Lake Michigan (nine parts or more in ten) would increase the danger, as it now generally is believed that the bacteria of decay, the saprophytes, which flourish in stagnant pools, destroy the pathogenic germs. Of course, the addi¬ tion of so much water to the Illinois also increases its speed.

On the other hand, the defendant’s evi¬ dence shows a reduction in the chemical and bacterial accompaniments of pollution in a given quantity of water, which would be natural in view of the mixture of nine parts to one from Lake Michigan. It af¬ firms that the Illinois is better or no worse at its mouth than it was before, and makes it at least uncertain how much of the pres¬ ent pollution is due to Chicago and how much to sources further down, not com¬ plained of in the bill. It contends that if any bacilli should get through, they would be scattered and enfeebled and would do no harm. The defendant also sets against the expeiiment with the bacillus prodigiosus a no less striking experiment with typhoid germs suspended in the Illinois river in per¬ meable sacs. According to this the duration of the life of these germs has been much ex- aggerated, and in that water would not be more than three or four days. It is suggested, by way of criticism that the germs may not have been of normal strength, that the conditions were less fa¬ vorable than if they had floated down in a comparatively unchanging body of water,

200 U. S.’

Stbickley v. Highland Boy Gold Min. Co.

525-527

and that the germs may have escaped ; but the experiment raises at least a serious doubt. Further, it hardly is denied that there is no parallelism in detail between the increase and decrease of typhoid fever in Chicago and St. Louis. The defendant’s experts maintain that the water of the Mis¬ souri is worse than that of the Illinois, while it contributes a much larger portion to the intake. The evidence is very strong that it is necessary for St. Louis to take preventive measures, by filtration or other- 1526] wise, against the dangers of the ‘plain¬ tiff's own creation or from other sources than Illinois. What will protect against one will protect against another." The presence of causes of infection from the plaintiff’s action makes the case weaker in principle as well as harder to prove than one in which all came from a single source.

Some stress was laid on the proposition that Chicago is not on the natural water¬ shed of the Mississippi, because of a rise of a few feet between the Desplaines and the Chicago rivers. We perceive no reason for distinction on this ground. The natural features relied upon are of the smallest. And if, under any circumstances, they could affect the case, it is enough to say that Illinois brought Chicago into the Mis¬ sissippi watershed in pursuance, not only of its own statutes, but also of the acts of Congress of March 30, 1822 (chap. 14, 3 Stat. at L. 659), and March 2, 1827 (chap. 51, 4 Stat. at L. 234), the validity of which is not disputed. Wisconsin v. Duluth, 96 U. S. 379, 24 L. ed. 668. Of course these acts do not grant the right to discharge sewage, but the case stands no differently in point of law from a suit because of the discharge from Peoria into the Illinois, or from any other or all the other cities on the banks of that stream.

We might go more .into detail, but we be¬ lieve that we have said enough to explain our point of view and our opinion of the evidence as it stands. What the future may develop, of course we cannot tell. But our conclusion upon the present evidence is that the case proved falls so far below the allega¬ tions of the bill that it is not brought within the principles heretofore established ia the cause.

Bill dismissed without 'prejudice.