Canfield v. Andrew.

injured by the depositing thereon of the waste from the defendants' mlll, is not so sustained as to entitle them to any relief in this court. We do not doubt that some of the waste from the defendants' mill was lodged upon the orators' lands. The waste from their mill and the orators' mill, and what came from the Battenkill river, were all commingled together, and caused the damage complained of. The aggregate injury occasioned to the orators by all the waste thus deposited is so inconsiderable in amount that we do not feel justified in attempting to ascertain what proportion of it was occasioned by the acts of the defendants. The remaining and more important question arises under the allegation of the practice of the defendants in discharging their waste into the stream and thereby injuring the orators in the use and enjoyment of their mill. The fact that the defendants had been in the habit of either discharging the waste from their mill directly into the stream or leaving it on the banks in such position that it found its way into the stream in such quantities that it filled up the orators' pond to the extent that they were put to considerable necessary expense in removing it, and that it seriously interfered with the profitable use of their mill is established by the proofs. It is equally as well established that there was no necessity for the defendants to dispose of their waste in that manner. It was a matter of convenience for them to so dispose of it; they could have gotten rid of it in some other way, but that would have entailed upon them additional expense.

Upon these findings the equitable rights of the parties are to be determined. Shall the defendants be permitted to dispose of their waste as they have hitherto done, notwithstanding the injury it may occasion to the orators? or shall they be enjoined ?

The maxim, Sic utere tuo ut alienum non laedas,-which has always been understood to mean that one must so use his own property as not to injure that of another—is one of general application both at law and in equity. The practical enforcement of the principle therein contained has been suspended only in exceptional cases, and when, owing to peculiar circumstances, it has been deemed unjust and inequitable to apply it as when questions of public interest, benefit or convenience, were involved, and

Canfield v. Andrew.

it has appeared that the damage to the property owner or owners would be more than compensated by the benefit to them and to the public, arising from a continuance of the act producing the injury; or, where there has appeared to be a public necessity that could only be met by the continuance of such act.

use.

The cases of Snow v. Parsons, 28 Vt. 459, and Jacobs v. Allard, 42 Vt. 303, are relied on as authority for the proposition that this case is to be regarded as coming within the exception to the above maxim. In Snow v. Parsons, the court, in speaking of the right to the use of water, say that the reasonableness of such use must determine the right, and this must depend upon the extent of detriment to the riparian proprietor below. If it essentially impairs the use below, then it is unreasonable and unlawful, unless it is a thing altogether indispensable to any beneficial The court further say that there is no doubt one must be allowed to use a stream in such a manner as to make it useful to himself, even if it do produce slight inconvenience to those below; and that testimony showing the uniform custom of the country was admissible upon the question of the reasonableness of the use made. In Jacobs v. Allard the facts were different; but the same question was before the court, and they say that "the true idea of the law involved and governing the subject of this cause is well stated and developed in Snow v. Parsons ;" and although Judge BARRETT, in what is subsequently said in the opinion, uses language that, taken alone, might be construed as giving an unlimited right to the manufacturer to discharge his waste into the stream upon which his works are situated, we think that language must have been used with reference to the facts as they appeared in the particular case then under consideration, rather than with the intention of promulgating a general rule upon the subject. The qualification stated by the learned judge in the subsequent portion of the opinion confirms us in this belief.

While it is true that a manufacturer has the right to appropriate and use the water of a stream in a proper manner, it is equally true that he must respect and regard the rights of riparian proprietors below him; and while such owners must submit to such inconvenience and injury as may result from such use, they are

Canfield v. Andrew.

not compelled to submit to damages which are not necessarily occasioned thereby. Such damages as are incident to, and necessarily result from, a proper use of the water must be borne; but the manufacturer has no right to do any act that in its consequences is injurious to others because it is a matter of convenience or economy for him to do it. It is as much the duty of a manufacturer to so dispose of his waste as not to injure others, as it is to refrain from injuring others by any other act. No one is allowed to deposit any substance in a running stream that will pollute its waters to the injury of a riparian proprietor below. Wood v. Sutcliffe, 8 L. & Eq. R. 217; Goddard's Law of Easements, (Bennett's edition,) 67 and 253. Neither has any one the right to deposit any other substance in such a stream, beyond what is absolutely necessary to a beneficial use of it, to the injury of millowners or the lands through which the stream may run. It would be manifestly unjust to hold that a manufacturer could so conduct his business as to seriously impair the value of the rights and property of other manufacturers on the same stream, below, and injure or perhaps ruin lands of riparian owners without accountability, upon the showing that it was more convenient and economical to him thus to conduct it.

The acts of the defendants in depositing the waste made at their mill in the manner we have found it has been done, were illegal, and a perpetual injunction will be issued, enjoining them, their heirs, executors, administrators and assigns from so disposing of it in the future.

We do not understand in what is now decided, that we are overruling the decisions relied upon by the defendants in 28 and 42 Vt.; but applying the law, as there laid down, to the facts found in this case.

The pro forma decree of the Court of Chancery, dismissing the bill, is reversed and the cause remanded, with a mandate that an injunction be issued perpetually enjoining the defendants, their heirs, executors, administrators and assigns from depositing any sawdust, shavings or refuse in the stream described in the orators' bill, at any point above the orators' mill, except such as may be absolutely and indispensably necessary for the beneficial use of

Snow v. Carpenter.

the water of said stream by the defendants; and that an account be taken of the damage that the orators have sustained on account of the lodging or depositing of sawdust, shavings and refuse made at the defendants' mill in their mill-pond, and in the operating of their mill and machinery in consequence thereof. And that upon the ascertainment of the amount of such damages, and after deducting therefrom the proportion thereof that shall be found to have been occasioned by the depositing in said stream of such sawdust, shavings and refuse by the defendants as was absolutely and indispensably necessary for the beneficial use of the water of said stream at that time, decree be entered for the orators for the amount of the damages that may be so ascertained. And that the costs in the Court of Chancery and in this court be apportioned and settled by the Court of Chancery.

*O. L. SNOW v. DANIEL AND DANIEL C. CARPENTER.

Death of Party while Cause is pending in the Supreme Court on Exceptions does not abate the Suit.

1. Exceptions are of the nature of a writ of error; hence, when a judgment has been rendered by the County Court on a verdict, and while the cause is pending in the Supreme Court, but after a hearing there, one of the defendants dies, and a minute of his death is made on the record, and afterwards the judgment below is affirmed, not nunc pro tunc, but generally as of the time of its rendition, such judgment is not void, and should be given full force until reversed. 2. In such case the plaintiff has a legal claim against the estate of the deceased, and it should be allowed by the commissioners. If the judgment of the Supreme Court were void, that of the County Court would be valid. Execution might issue, or an action of debt be maintained upon it unless stayed by special order. 3. A judgment rendered by the County Court is a "final judgment," and hence not affected by section 19, c. 52, G. S. (R. L. s. 2141,) whereby, if one co-defendant dies the action proceeds against the others.

4. When one of the parties dies after judgment in the County Court and before hearing in the Supreme Court, the practice is to affirm or reverse such judgment, nunc pro tunc.

* Heard at the February Term, 1881.

Snow v. Carpenter.

5. G. S. c. 52, s. 19 (R. L. s. 2141);-one co-defendant dies; G. S. c. 53, s. 16 (R L. s. 2130),‚—as to discontinuance of action on death of party, &c.; and G. S. c. 30, 8. 59 (R. L. s. 1393), as to affirming judgment of the County Court by the Supreme Court-construed.

THIS case was heard at the December Term, 1880, VEAZEY, J., presiding. The court, pro forma, rendered judgment, affirming that of the Probate Court. The case appears in the opinion.

H. W. Brigham and Davenport & Eddy, for plaintiff. Judgments in the County Courts are conclusive upon the parties and privies until reversed or annulled. Before the Supreme Court will take jurisdiction, and hear exceptions, there must be a final judgment, or ending of the case in the court below.

In our practice, cases passing to the Supreme Court, on exceptions, stand in the same way as if taken there by writ of error. Penniman v. Patchin, 5 Vt. 346; Irish v. Clayes, 8 Vt. 30; Blodgett v. Adams, 24 Vt. 23; Pomfret v. Barnard, 44 Vt. 527.

When a case passes to the Supreme Court on exceptions, or writ of error, the judgment is not vacated. If upon hearing error is found, the judgment is reversed or corrected. If no error is found, or if the exceptions are abandoned, the judgment stands in its original vigor. Walker v. King, 2 Aik. 204; Sweet v. Sherman, 21 Vt. 23; Tarbell v. Downer, 29 Vt. 339; Lewis v. R. R. Co., 59 Missouri, 495; 21 Am. R. 385; Bacon Ab. Titles, Error, 479; Kimbrough v. Mitchell, 1 Head, 539; Thompson v. Kercheovl, 10 Hump. 322; Furber v. Carter, 2 Sneed 1.

T. Sibley, for the defendants.

The defendants claim that there is a fatal variance between the judgment declared upon, and the copies of record which are introduced to prove the same.

The declaration sets up two distinct judgments upon one and the same cause of action, is double, defective, and should be dismissed. A general demurrer would be sustained upon the above grounds alone.

But if the court should hold that the cause of action survived, the question then arises, in what way should the claim be presented