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Show 546 NEW YORK plaintiffs133 (presumably by entering into a contract whereby plain- tiffs' consent would have been obtained and defendant would have been legally bound to continue to supply replacement water) or through the exercise of eminent domain.134 The last case decided of the nine mentioned related to water pollution,135 and there the court found some of defendant's activities to be reasonable and some unreasonable, viewed in light of the use which plaintiff was making of the water. Defendant operated a carpet mill about 8,000 feet upstream from plaintiff's paper mill, and discharged into the stream a number of pollutants, including raw sewage from 640 employees, wool washings, and water in which dyed yarn had been washed. The court found that discharge of the sewage was unreasonable and therefore unlawful, even though the stream was sufficiently polluted before it reached defendant's mill that it was unfit for drinking and plaintiff's employees did not use it for that purpose. The court said the sewage still constituted a hazard, that plaintiff was not required to drink the water and become ill or die in order to prove actual damage, and that it was sufficient that there was potential harm "if the water be used for drinking purposes or may otherwise reach the intestinal tract." 136 With respect to the wool washings, which plaintiff claimed con- tained microscopic fibers that clogged the filters in his mill, the court said plaintiff's damage was somewhat speculative and that it was entirely reasonable that defendant should use the water in that manner. The dye in the water would have been unreasonably difficult for defendant to remove and was not demonstrably damaging to plaintiff, and so the court also found that use to be reasonable. While allowing the latter two contaminants to be discharged into the stream, the court was not oblivious to the prescription problem, and noted that: It does not appear that the defendant's use of the water has been such in continuity and degree as to gain it the right by prescription either to pollute or discolor the stream, or otherwise to affect it with impurities.137 Whether the above cases really reflect an adoption of the natural flow theory (as some have suggested), or whether they show an effort by the courts to prevent unreasonable uses so as to prevent such uses from becoming prescriptive rights (as suggested here), the fact is that there was a good deal of uncertainty, consternation, and litiga- tion with respect to whether riparians who were not suffering present damage were obliged to bring suit in order to avoid being prescribed by unreasonable uses of others. And this precipitated enactment of the harmless use statute. C. HARMLESS USE STATUTE 138 Enacted to be effective October 1, 1966, the harmless use statute declares: An alteration (whether or not it causes water to cover or permeate land previously dry) in the natural flow, quantity, quality or condition of a natural las Smith v. City of Rochester, note 3, p. 29, at 614-15. !3*Id. at 617. ws storm King Paper Co., Inc. v. Firth Carpet Co., 184 A.D. 514, 172 N.Y.S. 33 (1918). is6 Id. at 34. 137 Id. at 36. mseCL Bee. 15-0701. |