McKie v. The K.V.P. Company Limited
[1948] O.R. 398-419
McRUER C.J.H.C.
15th APRIL 1948.
MCRUER C.J.H.C.:— The plaintiffs
are all riparian proprietors on the
There is no doubt that in the process of manufacture of kraft paper the defendant discharges large quantities of foreign matter into the river upstream from the property owned and occupied by the plaintiffs. The plaintiffs claim damages and ask for an injunction on the grounds that:
(1) Their comfort and the enjoyment of their land is interfered with by reason of foul odours given off from the water.
(2) The water has been rendered unfit for human consumption either in its raw state or after it has been boiled.
(3) The ice taken from the river for domestic use is unfit for the purposes for which it is used.
(4) The water is repulsive to farm animals and milking cows will not drink it in sufficient quantities to maintain normal milk supply.
(5) The water is unfit to bathe in.
(6) The fish in the river are being either killed or driven therefrom.
(7) Wild rice, which has formerly grown in abundance in the waters of the river, forming a feeding ground for wild ducks, has been destroyed.
The defendant does not deny that injurious matter is discharged into the river from its mill, but it contends that this is sufficiently diluted by the waters of the river to render it harmless. It is also argued on behalf of the defendant that no right of action lies at the instance of the plaintiffs for interference with the fish in the river.
The origin of the common law applicable to this subject goes back to and beyond the Roman law. The proprietor of riparian lands has a right incident to the land, independent of the ownership of the solum of the stream or river, to the flow of water through or by his land in its natural state, and if the stream is polluted or otherwise interfered with, so as to affect this right, by an upper riparian proprietor, the lower riparian proprietor who has suffered damage in law, though not in fact, may maintain an action for an injunction unless the person causing the interference with his right has a prescriptive right to do so.
This principle has been discussed in many leading cases and is probably nowhere more clearly developed than in the judgment of Chief Baron Pollock in Wood et al. v. Waud et al. (1849), 3 Ex. 748, 154 E.R. 1047, where the right is defined as "a right to the natural stream flowing through the land, in its natural state, as an incident to the right to the land on which the watercourse flowed, ... and that right continues, except so far as it may have been derogated from by user or by grant to the neighbouring landowners." The injury complained of is an injury to a right, and the defendant, by continuing the practice for 20 years, might establish the right to an easement by prescription: see pp. 772-4.
Although the riparian proprietor has rights incident to the rights to the soil, he has no property interest in the water but merely an usufructuary property interest therein.
Although water, according to the Roman law, was publici juris, the first occupier or first person who chooses to appropriate a natural stream to a useful purpose has no title against the owner of land below so as to deprive him of the flow of the water in its natural state: per Denman C.J. in Mason v. Hill et al. (1833), 5 B. & Ad. 1 at 24, 110 E.R. 692.
Lord Wensleydale in Chasemore v. Richards (1859), 7 H.L. Cas. 349 at 382, 11 E.R. 140, said: "The subject of right to streams of water flowing on the surface has been of late years fully discussed, and by a series of carefully considered judgments placed upon a clear and satisfactory footing. It has been now settled that the right to the enjoyment of a natural stream of water on the surface, ex jure naturae, belongs to the proprietor of the adjoining lands, as a natural incident to the right to the soil itself, and that he is entitled to the benefit of it, as he is to all the other natural advantages belonging to the land of which he is the owner. He has the right to have it come to him in its natural state, in flow, quantity and quality, and to go from him without obstruction; upon the same principle that he is entitled to the support of his neighbour's soil for his own in its natural state. His right in no way depends upon prescription, or the presumed grant of his neighbour." See also pp. 382-3.
Lord Macnaghten in John Young and Company v. The Bankier Distillery Company et al., [1893] A.C. 691 at 698, said: "Every riparian proprietor is thus entitled to the water of his stream, in its natural flow, without sensible diminution or increase and without sensible alteration in its character or quality. Any invasion of this right causing actual damage or calculated to found a claim which may ripen into an adverse right entitles the party injured to the intervention of the Court." (The italics are mine.)
Vice-Chancellor Sir W. Page Wood in The Attorney-General v. The Borough of Birmingham (1858), 4 K. & J. 528 at 540, 70 E.R. 220, said: "He has a clear right to enjoy the river, which before the Defendants' operations flowed unpolluted -- or, at all events, so far unpolluted that fish could live in the stream and cattle would drink of it -- through his grounds, for three miles and upwards, in exactly the same condition in which it flowed formerly, so that cattle may drink of it without injury, and fish, which were accustomed to frequent it, may not be driven elsewhere." The italicized words must be considered in the light of the fact that in this case the plaintiffs were owners of the bed of the stream.
In
And at p. 683: "With respect to the ownership of the bed of the river, this cannot be the natural foundation of riparian rights properly so called, because the word 'riparian' is relative to the bank, and not the bed, of the stream; and the connection, when it exists, of property on the bank with property in the bed of the stream depends, not upon nature, but on grant or presumption of law ... The title to the soil constituting the bed of a river does not carry with it any exclusive right of property in the running water of the stream, which can only be appropriated by every one having a right of access to it. It is, of course, necessary for the existence of a riparian right that the land should be in contact with the flow of the stream; but lateral contact is as good, jure naturae, as vertical; and not only the word 'riparian,' but the best authorities, such as Miner v. Gilmour, 12 Moo. P.C. 131 [14 E.R. 861, C.R. [3] A.C. 230], and the passage which one of your Lordships has read from Lord Wensleydale's judgment in Chasemore v. Richards, 7 H.L.C. 349 [11 E.R. 140], state the doctrine in terms which point to lateral contact rather than vertical.
If a riparian proprietor's rights have been violated, it is not necessary for him to prove damage to maintain his action.
In Pennington v. Brinsop Hall Coal Company (1877), 5 Ch. D. 769 at 772, Fry J. emphasizes the clear distinction to be drawn in these cases between the invasion of a right and damage: "I may observe in passing that the case of a stream affords a very clear illustration of the difference between injury and damage; for the pollution of a clear stream is to a riparian proprietor below both injury and damage, whilst the pollution of a stream already made foul and useless by other pollutions is an injury without damage, which would, however, at once become both injury and damage on the cessation of the other pollutions."
From what was said by Mr. Justice Fry it is clear that it
is not a defence to this action to show that the
waters of the river were in some measure polluted by the
"Where there are many existing nuisances, either to the air, or to water, it may be very difficult to trace to its source the injury occasioned by any one of them; but if the Defendants add to the former foul state of the water, and yet are not to be responsible on account of its previous condition, this consequence would follows, that if the Plaintiffs were to make terms with the other polluters of the stream so as to have water free from impurities produced by their works, the Defendants might say, 'we began to foul the stream at a time when, as against you, it was lawful for us to do so, inasmuch as it was unfit for your use, and you cannot now by getting rid of the existing pollutions from other sources, prevent our continuing to do what, at the time when we began, you had no right to object to.'"
In view of the fact that in the case at bar the pollution
caused by the town of
Some evidence was given on behalf of the defendant to show the importance of its business in the community, and that it carried it on in a proper manner. Neither of these elements is to be taken into consideration in a case of this character, nor are the economic necessities of the defendant relevant to be considered.
In my view, if I were to consider and give effect to an argument based on the defendant's economic position in the community, or its financial interests, I would in effect be giving to it a veritable power of expropriation of the common law rights of the riparian owners, without compensation.
In applying the principles of law with which I have been dealing, it is convenient to consider first what rights the plaintiffs have to relief, founded on injury to the fishing. In considering this aspect of the case, the question whether or not the river is a navigable one is of importance. Otherwise, the rights of riparian proprietors are the same on navigable and non-navigable rivers: North Shore Railway Company v. Pion et al. (1889), 14 App. Cas. 612, C.R. [10] A.C. 63, 15 Q.L.R. 228, applied in Re Snow and City of Toronto, 56 O.L.R. 100 at 106, [1924] 4 D.L.R. 1023.
The general principle is that rights of fishing are in their nature mere profits of the soil over which the water flows and the title thereto arises from the right to the solum: Attorney-General for British Columbia v. Attorney-General for Canada, [1914] A.C. 153 at 167, 15 D.L.R. 308, 5 W.W.R. 878, 26 W.L.R. 347, 13 E.L.R. 536. The fishing in a river is the subject of property, and according to the English law must have an owner and cannot be vested in the public generally: see p. 173.
"... the title to fish follows the title to the solum, unless it has been severed and turned into an incorporeal hereditament of the nature of a profit a prendre in alieno solo": Attorney-General for Canada v. Attorney-General for Quebec, [1921] 1 A.C. 413 at 421, 56 D.L.R. 358.
Since 1911 the solum of all navigable rivers in Ontario has been vested in the Crown under the provisions of The Bed of Navigable Waters Act, R.S.O. 1937, c. 44, s. 1a, as re-numbered by 1940, c. 28 s. 3(1), which reads as follows: "Where land bordering on a navigable body of water or stream has been heretofore, or shall hereafter, be granted by the Crown, it shall be presumed, in the absence of an express grant of it, that the bed of such body of water or stream was not intended to pass to the grantee of the land, and the grant shall be construed accordingly, and not in accordance with the rules of the English Common Law."
With the exception of the plaintiff James B. Vance, none of the respective plaintiffs has any interest in the bed of the river. They have, however, certain rights to use the river as a highway, but no property right, appendant to the soil, to fish therein.
The public right to fish in navigable waters is a matter
which has been the subject of discussion antedating Magna Carta,
and was dealt with in the 16th chapter. Neill et
al. v. The Duke of
I have concluded, however, that, even assuming that the plaintiffs (I am now discussing the rights of those other than the plaintiff James B. Vance), as members of the public, have a right to fish in the river, their rights are no higher than those of any any other members of the public. It may be that they are in a better position to exercise their rights than other members of the public, but the interference with fishing does them no injury not common to others who wish to take fish from the river. The principles applicable here are similar to those applicable to nuisance cases. If the acts or omissions alleged are in derogation of rights which the plaintiffs have in common with all His Majesty's subjects who have occasion to exercise those rights, the plaintiffs have no remedy by an action for damages unless they can establish that they have suffered special and peculiar damage beyond what was suffered by the rest of His Majesty's subjects: Blundy, Clark and Company, Limited v. London and North Eastern Railway Company, [1931] 2 K.B. 334. As was said by Lord Justice Greer in that case, what amounts to special and peculiar damage is a matter of some difficulty, but I have been unable to find any authority, and none has been submitted to me, that would warrant me in holding that loss to the business of the plaintiffs as operators of tourist camps caused by the injury to the fishing would bring the case within the exception and be actionable.
The rights of the plaintiff James B. Vance are on a very different footing. As owner of that part of the soil in the bed of the river covered by the grant to him of the water lot, he has property rights distinct from all the other plaintiffs. He is the proprietor of a fishery appendant or appurtenant to the ownership of the soil. He has the right to a free passage for fish in his fishery and he has the right to catch as many fish as by his industry and art he can: Hamilton v. Marquis of Donegal (1795), 3 Ridg, Parl. Rep. 267; Barker v. Faulkner (1898), 79 L.T. 24. But he must not in the exercise of his rights do anything to interfere with the rights of persons above or below him or riparian owners. The defendant, having, by the pollution of the river, interfered with this plaintiff's property rights, is liable in damages if he has suffered any, and to be restrained from further interference with those rights: Aldred's Case (1610), 9 Co. Rep. 57b, 59a, 77 E.R. 816.
The right of action for an injunction is not dependent on
proof of actual damage. Where interference is shown to exist, damage
is presumed. This aspect of the subject is fully discussed by Lord
Wright in Nicholls v. Ely Beet Sugar Factory, Limited, [1936]
In view of the finding of fact that I have made I have therefore concluded that the plaintiff James B. Vance is entitled to equitable relief based on interference with the fishing.
The main ground on which the plaintiffs claim relief is, however, not founded on interference with the fishing but on a violation of their rights as riparian proprietors. On this branch of the case, I find that all plaintiffs have proved a good cause of action and are entitled to succeed on their claims for damages and an injunction.
In addition to the right of action based on interference with riparian rights, the plaintiffs claim a right to maintain an action for nuisance. The claim is that the smells from the river, caused by the effluent entering the water from the defendant's mill, are sufficiently offensive to be an actual and substantial interference with the comfort and enjoyment of the plaintiffs' properties measured by ordinary and reasonable standards.
The tests to be applied in respect of this claim are expressed with concise clarity in the oft-quoted words of Knight Bruce V.C. in Walter v. Selfe (1851), 4 DeG. & Sm. 315 at 322, 64 E.R. 849: "and both on principle and authority the important point next for decision may properly, I conceive, be thus put: ought this inconvenience to be considered in fact as more than fanciful, more than one of mere delicacy or fastidiousness, as an inconvenience materially interfering with the ordinary comfort physically of human existence, not merely according to elegant or dainty modes and habits of living, but according to plain and sober and simple notions among the English people?"
They are also laid down by Lord Lindley in Rapier v. London Tramways Company, [1893] 2 Ch. 588 at 600: "The question is whether the Defendants do or do not create in the conduct of their business such a smell as diminishes the reasonable enjoyment and comfort of the Plaintiff's house. The fact that somebody with a sensitive nose smells some ammonia and does not like it will not prove a nuisance; it is a question of degree. You can only appeal to the common sense of ordinary people. The test is whether the smell is so bad and continues as to seriously interfere with comfort and enjoyment. No one says it is so bad as to interfere with health."
It is argued on behalf of the defendant, but I think with little confidence, that even if the nuisance exists, it is a public nuisance committed on Crown property (i.e., the bed of the river) and consequently the plaintiffs have no cause of action. I know of no authority that would justify me in holding that it is the law of Ontario that one can deposit material injurious to the health or the comfort of one's neighbours on a highway vested in the Crown, either with permission or without it, and that the Courts would be helpless to give relief to the injured party by restraining the original wrongdoer.
The plaintiffs' rights may be taken from them by legislation, but not by agreement between the Crown in the right of the Province and the defendant. I therefore find that the plaintiffs have proved an actionable nuisance and are entitled to relief on that footing as well as the one heretofore discussed.
It remains to be considered what form the relief to which the plaintiffs are entitled should take.
The principles on which the Courts act in granting an
injunction in cases of this sort are fully discussed in Shelfer
v. City of London Electric Lighting Company; Meux's
Brewery Company v. The Same, [1895] 1
"The rule I take to be clearly this: if a plaintiff applies for an injunction to restrain a violation of a common law right, if either the existence of the right or the fact of its violation be disputed, he must establish that right at law; but when he has established his right at law, I apprehend that unless there be something special in the case, he is entitled as of course to an injunction to prevent the recurrence of that violation."
And Lord Justice Smith says at p. 322:
"Many Judges have stated, and I emphatically agree with them, that a person by committing a wrongful act (whether it be a public company for public purposes or a private individual) is not thereby entitled to ask the Court to sanction his doing so by purchasing his neighbour's rights, by assessing damages in that behalf, leaving his neighbour with the nuisance ...
"In such cases, the well-known rule is not to accede to the application, but to grant the injunction sought, for the plaintiff's legal right has been invaded, and he is prima facie entitled to an injunction."
An injunction will go restraining the defendant from
depositing foreign substances or matter in the
After most careful consideration of all the arguments advanced by counsel, I exclude the claim of all plaintiffs for injury to the fishing and take into account only the interference with the plaintiffs in the enjoyment of their respective property rights and the effect on their businesses caused by the pollution of the river and the nuisance for which the defendant is responsible.
James B. Vance is in a different position from the other
plaintiffs. As I have stated he is a commercial fisherman holding a licence from the
Judgment accordingly.