Department of Health for 1906 shows the correspondence relative to the pollution of a certain creek. On September 26, 1906, the state commissioner wrote to the president of the local board of health that numerous complaints had been made as to this creek, and that the state inspector had observed that seepage from cesspools found its way to the water. This letter was not answered. On November 14, the state commissioner again wrote. On November 26, the president of the local board replied that rules and regulations had been adopted, but as appears in a letter of December 17 from one of the four local justices of the peace nothing was done other than to post a printed copy of the rules. Cesspools and manure heaps continued to work, and on December 10 the president of the local board of health died of typhoid fever, while others in the town suffered from the same disease. The justice of the peace adds, "What we plainly need is some authority strong enough and courageous enough to order a thorough clean-up and see that it is done." In the other case the proprietor of a summer hotel situated on a brook above the plaintiffs land, discharged sewage into that stream. The local board of health had ordered such discharge to prevent the defendant from maintaining a cesspool, but this plaintiff, although she did not use the water of the stream for domestic purposes, but only for bathing and driving a turbine wheel, and although it appeared that the water was not affected either to sight or smell, was "strong enough and courageous enough" to fight the hotel proprietor in spite of the board of health. She won her fight in the trial court, then in the appellate division of the supreme court and finally in the court of appeals, and the discharge of sewage was forbidden. It might have been exceedingly difficult, perhaps impossible, to show that a public nuisance existed here, but the purpose of preventing stream pollution was accomplished by the riparian owner who defended her private rights.
The chief offenders in stream pollution are villages and cities, but the law is that such municipal corporations have no greater right than an individual to interfere with the riparian owner. There are numerous cases where actions have been maintained against municipalities, and in many of these cases injunctions have been issued. Where, however, the municipality constructs the offensive sewage system with statutory authority the private individual may ultimately fail in preventing pollution, for since his action is based not upon a claim that public health is interfered with, but merely that he is deprived of property rights, if the municipality has been granted the power of eminent domain, it can not be permanently enjoined if compensation is made to the private owner.
Most of the second great class of nuisances are those where the air has been contaminated, as by smoke, smells or gases. The law protects much more rigorously the right of a riparian owner to pure water than
