OCR Text |
Show 30 THE RIPARIAN DOCTRINE vicinity.148 A slight impairment of quality would not necessarily be unreason- able and actionable; liability may depend on both the factual situation and the rules of law by which reasonableness of the use of water is determined.149 According to a California case, the use is unreasonable if it injures downstream riparians maliciously or unnecessarily.150 Whether or not the upstream use substantially injures the downstream right of use is the essential consideration,151 qualified by any other limitation as to reasonableness of use. If necessary to safeguard the exercise of his lawful riparian uses, said the California Supreme Court, the downstream proprietor is entitled as against upstream riparians and prior appropriators "to a sub- stantially unpolluted stream."152 This is particularly the case when the downstream use is for domestic purposes.153 wBoyd v. Schreiner, 116 S.W. 100, 103 (Tex. Civ. App. 1909, error refused). Elements of the nuisance doctrine have been employed in this and some of the other pollution cases. Moreover, some cases have employed elements of the negligence doctrine. An Oklahoma riparian owner brought an action for damages arising from the claimed pollution of a stream, flowing through his premises, as a result of poisonous chemicals discharged into the channel from a carbide plant. However, his failure to prove that there were poisonous or deleterious substances in the water harmful to animal life, or that his animals and fowl died as the result of drinking the water, was held fatal to his right of recovery. The syllabus by the court contains the following paragraph: "1. In order to sustain a recovery in an action based on negligence, there must be a causal connection between the negligence averred and the injury received, and such causal connection cannot be established by basing inference upon inference, or presumption upon presumption." Prest-O-Lite Co. v. Howery, 169 Okla. 408, 37 Pac. (2d) 303 (1934), approved, but distinguished on the facts, in Gulf Oil Corp. v. Miller, 198 Okla. 54, 55-56, 175 Pac. (2d) 335 (1946). In a decision rendered in 1951, this case was reviewed and the holding therein approved as to proof of cause of injury from stream pollution. "The holding in this case *** is now the settled law in this state." Ogden v. Baker, 205 Okla. 506, 508, 239 Pac. (2d) 393 (1951), again approved, Sunray Oil Corp. v. Burge, 269 Pac. (2d) 782, 786 (Okla. 1954). l49Boyd v. Schreiner, 116 S.W. 100, 103 (Tex. Civ. App. 1909, error refused). The discharge of sewage that so polluted stream water as to lessen the value of riparian lands was held actionable in New Odorless Sewerage Co. v. Wisdom, 30 Tex. Civ. App. 224, 226-228, 70 S.W. 354 (1902, error refused). The South Dakota Supreme Court held that inasmuch as riparian rights are property and enter materially into the actual value of the land abutting on a stream, an impairment of such rights by pollution of the stream water by the discharge of sewage into it is a taking, or at least a damaging, of the owner's property. The evidence showed conclusively that plaintiffs use and enjoyment of a stream was substantially curtailed, that he and his family suffered from obnoxious odors, and that he had sustained substantial damages. "From their very nature, such damages are not susceptible of exact measurement, nevertheless it was for the court to determine their extent." Parsons v.Sioux Falls, 65 S. Dak. 145, 151-153, 272 N.W. 288 (1937). 1S0Holmesv.Nay, 186 Cal. 231,241, 199 Pac. 325 (1921). 151 Duckworth v. Watsonville Water & Light Co., 150 Cal. 520, 525, 89 Pac. 338 (1907); Mentone In. Co. v. Redlands Elec. Light & Power Co., 155 Cal. 323, 327, 100 Pac. 1082 (1909); Martin v. British Am. Oil Producing Co., 187 Okla. 193, 195, 102 Pac. (2d) 124 (1940). 15tCrum v.Mt. Shasta Power Corp., 220 Cal. 295, 312, 30 Pac. (2d) 30 (1934). ls*Joerger v. Pacific Gas & Elec. Co., 207 Cal. 8, 25-26, 276 Pac. 1017 (1929). |