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Whalen v. Union Bag and Paper Co.

Supreme Court of New York, Appellate Division

May 16, 1911

ROBERT E. WHALEN, Respondent,
v.
THE UNION BAG AND PAPER COMPANY, Appellant.

APPEAL by the defendant, The Union Bag and Paper Company, from part of a judgment of the Supreme Court in

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favor of the plaintiff, entered in the office of the clerk of the county of Saratoga on the 4th day of August, 1910, upon the decision of the court rendered after a trial at the Saratoga Special Term.

COUNSEL

J. S. L'Amoreaux, for the appellant.

Robert E. Whalen, in person, for the respondent.

PER CURIAM:

The plaintiff is owner of lands through which Kayaderosseras creek, in the county of Saratoga, flows, and the defendant owns and operates a pulp mill located on said creek above the lands of plaintiff. The defendant discharges its refuse into said creek and this action is brought to restrain such pollution, and has resulted in a decree perpetually restraining the defendant from so doing, together with damages.

The defendant's plant represents an investment of hundreds of thousands of dollars, and in comparison the plaintiff's farm is of insignificant value. The stream is also polluted by the refuse from a tannery belonging to the American Hide and Leather Company, and other mills situated thereon. The learned trial court did not apportion the damages and charge the defendant with that part of the damage which it caused. If the defendant shall discontinue the discharge of its refuse into the creek the water will still be polluted by the refuse from the tannery, as the trial court expressly finds.

Where several persons contribute to the pollution of a stream it is proper to apportion the damages. (Sammons v. City of Gloversville, 34 Misc. 459; affd., 67 A.D. 628; 175 N.Y. 346.)

Notwithstanding the fact that the defendant may have bought its peace at a previous time by paying the plaintiff damages at the rate allowed in the judgment appealed from, we think the damages recovered are altogether too much for that part of the injury which the defendant inflicted, and that $100 per year is an ample allowance. The creek runs through mere pasture and meadow land of the plaintiff, and, while the water of the creek is made foul and offensive from the aggregate pollution, the injury to the plaintiff is insignificant compared

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to the injury which would result to the defendant in compelling it to discontinue the operation of its pulp mill.

A court of equity is not bound to issue an injunction when it will produce great public or private mischief, merely for the purpose of protecting a technical or unsubstantial right. ( Gray v. M. R. Co., 128 N.Y. 499, 509; Loukes v. Payne, 140 A.D. 776.)

Whether a court of equity will enjoin a wrongful act where the damages are not substantial depends upon the circumstances. The facts show that it would not materially aid the plaintiff in his endeavor to purify the waters if the ...


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