Vol. II.] ATLEE v. NORTHWESTERN UNION PACKET Co. [No. 7. We are of opinion that the pier against which libellant's barge struck was placed by him in the navigable water of the Mississippi River without authority of law, and that he is responsible for the damages to the barge and its contents. But the plaintiff has elected to bring his suit in an admiralty court, which has jurisdiction of the case, notwithstanding the concurrent right to sue at law. In this court the course of proceeding is in many respects different, and the rules of decision are different. The mode of pleading is different, the proceeding more summary and informal, and neither party has a right to trial by jury. An important difference as regards this case is the rule for estimating the damages. In the common law court the defendant must pay all the damages or none. If there has been on the part of the plaintiffs such carelessness or want of skill as the common law would esteem to be contributory negligence, they can recover nothing. By the rule of the admiralty court, where there has been such contributory negligence, or in other words, when both have been in fault, the entire damages resulting from the collision must be equally divided between the parties. This rule of the admiralty commends itself quite as favorably in its influence in securing practical justice as the other; and the plaintiff, who has the selection of the forum in which he will litigate, cannot complain of the rule of that forum. It is not intended to say that the principles which determine the existence of mutual fault on which the damages are divided in admiralty are precisely the same as those which establish contributory negligence at law that would defeat the action. Each court has its own set of rules for determining these questions, which may be in some respects the same, but in others vary materially. The district judge was of opinion in this case that the libellant was in fault, so as to require the application of the admiralty rule, and on that point this court agrees with him. The character of the skill and knowledge required of a pilot in charge of a vessel on the rivers of the country is very different from that which enables a navigator to carry his vessel safely on the ocean. In this latter case a knowledge of the rules of navigation, with charts which disclose the places of hidden rocks, dangerous shores, or other dangers of the way, are the main elements of his knowledge and skill, guided as he is in his course by the compass, by the reckoning, and the observations of the heavenly bodies obtained by the use of proper instruments. It is by these he determines his locality, and is made aware of the dangers of such locality, if any exist. But the pilot of a river steamer, like the harbor pilot, is selected for his personal knowledge of the topography through which he steers his vessel. In the long course of a thousand miles on one of these rivers, he must be familiar with the appearance of the shore on each side of the river as he goes along. Its banks, its towns, its landings, its houses and trees, and its openings between trees, are all landmarks by which he steers his vessel. The compass is of little use to him. He must know where the navigable channel is, in its relation to all these external objects, especially in the night. He must also be familiar with all dangers that are permanently located in the course of the river,—as sand21 VOL. II. Vol. II.] ATLEE v. NORTHWESTERN UNION PACKET Co. [No. 7. bars, snags, sunken rocks or trees, or abandoned vessels or barges. All this he must know and remember and avoid. To do this he must be constantly informed of changes in the current of the river, of sand-bars newly made, of logs or snags, or other objects newly presented, against which his vessel might be injured. In the active life and changes made by the hand of man or the action of the elements in the path of his vessel, a year's absence from the scene impairs his capacity, his skilled knowledge very seriously in the course of a long voyage. He should make a few of the first "trips," as they are called, after his return, in company with other pilots more recently familiar with the river. It may be said that this is exacting a very high order of ability in a pilot. But when we consider the value of the lives and property committed to their control, for in this they are absolutely masters, the high compensation they receive, and the care which Congress has taken to secure by rigid and frequent examinations and renewal of licenses this very class of skill, we do not think we fix the standard too high. Any pilot who, during the navigable season of the year 1870, was engaged in conveying vessels up and down the Mississippi River past Fort Madison, would have known of the existence of this pier and would have avoided it. Though the pilot in this case had been years engaged in navigating this part of the river, he had been absent for over a year, and this was his first voyage in a period of about fifteen months. He, therefore, did not know of the existence of this pier and ran against it. Again, the natural current of the river, after striking the little projection of the sand-bar below Fort Madison, is toward the eastern shore, and away from the shore with which this pier is connected. There was a large expanse of deep water a hundred feet farther out than where the vessel ran, which was safe, while there must always have been felt to be more or less danger of striking the saw-logs or boom, or some other matter belonging to Atlee's mill, by hugging the shore at that point even before the pier was built. A careful and prudent pilot in a dark night as this was would, therefore, have taken the middle of the river, the course of its natural current, instead of tending inward toward the shore after passing the projecting point of the sand-bar. For these reasons we are of opinion that there was such want of knowledge and skill in the pilot, and such want of care in his management of his vessel at that point, as to require the damages to be divided. As there is no exception to the report of the commissioner of the district court to whom the question of damages was referred based on this view, the decree of the circuit court is reversed, with instructions to render a decree on the basis of that report for half the damages which he found the libellant to have suffered. Vol. II.] GLADFELTER v. WALKER. [No. 7. COURT OF APPEALS OF MARYLAND. (To appear in 40 Md.) PLEADING IN AN ACTION TO RECOVER DAMAGES FOR POLLUTING A STREAM OF WATER. ADMISSIBILITY OF EVIDENCE. COURSE: RIGHT OF ACTION FOR POLLUTING A STREAM. GLADFELTER v. WALKER. WATERMEASURE In an action to recover damages for fouling a stream which flowed through the farm of the plaintiff, the last three counts of the declaration alleged substantially that the stream had long flowed through the plaintiff's farm in a pure state, but that some months prior to the institution of the suit, the defendant had fouled and was daily continuing to foul the same, by throwing into it certain poisonous substances. The second plea of the defendant stated that at and long before the time of the committing of the grievances alleged there was, and still is, an ancient paper-mill erected upon said stream, and near the plaintiff's land, to which mill was, and still is, annexed the right to use the water of the stream for all purposes belonging to the manufacture of paper, and that said mill was from its erection used in such manufacture with the knowledge and acquiescence of the plaintiff; that the defendant purchased the mill and the right appurtenant thereto, to use the water of the stream for all the purposes of paper manufacture, and that down to the time of such purchase no objection was made by the plaintiff ; that the defendant made use of the water reasonably and properly according to the customary methods of manufacturing paper, using only such chemicals and other substances, and employing only such methods and processes as were fit to be used about the manufacture of paper, and conducted the business of manufacturing paper in the said mill, in all respects, in a reasonable and proper manner. Held, that this plea was bad, in that having averred that there was a right appurtenant to the mill to use the water in the manufacture of paper, and that the plaintiff had acquiesced in this right up to the time of the purchase of the mill by the defendant, it failed to aver a user, and acquiescence by the plaintiff for a period of twenty years. The fourth plea, which averred that other mill-owners than the defendant had acquired a prescriptive right to foul the stream which flowed through the plaintiff's farm, was also bad, for such prescriptive right acquired by others was no bar to the plaintiff's right to recover as against the defendant for fouling the stream. Where the declaration expressly charges the defendant with fouling the stream which flowed through the plaintiff's farm by throwing into it certain poisonous substances, a plea that there was annexed to the defendant's mill a prescriptive right to use the water for all reasonable purposes in the manufacture of paper, and that the defendant had so used the water, and not otherwise, is defective in that it does not expressly deny, nor does it directly confess and avoid the facts stated in the declaration. To the declaration which charges the defendant with fouling a stream, to the use of which in its natural state the plaintiff claimed to be entitled, it is not a proper answer to aver that upon the same stream of water, above and below the paper-mill of the defendant, there are other paper-mills which have existed and been used as such for more than twenty years prior to the time of committing the alleged grievances, and at the said last mentioned time the water of said stream was used at said mills in the manufacture of paper, and the defendant manufactured paper at his mill in the usual manner and with reasonable care. At the trial of an action to recover damages for fouling a stream which flowed through the farm of the plaintiff, he proved that he was the owner of the farm, and that he had resided thereon for seventy years; that there were dwellings, a barn, and a gristmill on said farm; that prior to December, 1869, when the defendant and Dushane his partner commenced the use of the mill, the water of the stream had been pure, clear, and limpid, and was used for household purposes, and for watering the cattle and stock; but that from and after the date mentioned, the character of the stream Vol. II.] GLADFELTER v. WALKER. [No. 7. had been changed, and the water flowed daily for several hours of a color nearly black, and was covered with foam from bank to bank; that it was unfit for domestic use, and that the plaintiff was obliged to make other arrangements for watering his stock; and that such discoloration in, and foam on the water proceeded from substances thrown into it at the defendant's mill. The plaintiff also proved by the witness Ball, that he owned a farm on the stream about two miles below the plaintiff's; that ever since the defendant and Dushane commenced to work the mill, the water of the stream was black for six or seven hours, once, and sometimes twice a day, and that the stones at the bottom were discolored. The witness further stated that there were several other paper-mills on the stream, above defendant's mill, but none between the defendant's mill and the property of the witness, and that the water of the stream was never discolored before it was done by the defendant. The plaintiff then proposed to ask the witness, whether he had an opportunity to ascertain the effect produced on cattle by the use of the water, and if so, to describe it? To this question the defendant objected, but the court overruled the objection, and the witness answered that after the water became so impure, he lost by death two horses and a number of hogs, and that on opening them, he found the bladder nearly destroyed, and he found them filled with the polluted water, or what looked like it. On appeal by the defendant it was held, that this evidence was admissible, in connection with other facts, to go to the jury, to enable them to determine whether the stream had been rendered unfit for use by the acts of the defendant. The owner of land through which a stream flows is entitled to the use of the water in its natural state; and any one who pollutes it, so as to render it unfit for such use, is liable in an action for damages, unless he has acquired by grant or prescription an adverse right against the owner of the land. And where a stream is polluted by one who has not acquired a right so to do, by long enjoyment or grant, an action will lie against him by the owner of the land through which the stream flows, although he may not have suffered any actual damage. Where the owner of a farm through which a stream flows brings an action to recover damages for polluting the stream, he is entitled to recover such damages as naturally or necessarily resulted from the wrongful acts of the defendant; the loss of an opportunity by the plaintiff to rent his grist-mill, the diminution in the rental value of his farm, and the inconvenience he may have been put to in the use of the same, resulting directly from the conduct of the defendant, are proper elements for the consideration of the jury in estimating the damages. A count for entering and breaking the plaintiff's close may be properly joined with counts for polluting a stream of water, to the use of which in its natural state he is entitled. APPEAL from the superior court of Baltimore City. This was an action instituted by the appellee against the appellant and one John A. Dushane, in the circuit court for Baltimore County, and on the affidavit of the appellant was removed to the superior court of Baltimore City. Dushane was returned non est. The declaration contained six counts: the first was a count in trespass quare clausum fregit. The second count stated that the plaintiff was possessed of a mill in Baltimore County, and by reason thereof, was entitled to the flow of a stream for working of the same, and the said defendants, by cutting the bank of said stream, diverted the water thereof from the mill. The third count stated that the plaintiff was seised and possessed of a certain farm in Baltimore County, and was entitled to the flow and use of a certain stream of water accustomed to flow through said farm, wherewith to water his horses, cattle, and stock, and the defendants had wrongfully deprived him of the use of said stream of water by cutting the bank thereof, and diverting the water away from the land of the plaintiff. The other counts of the declaration charged, with some variety of allegation, that the plaintiff, as the owner of a tract of land through which the stream of Vol. II.] GLADFELTER v. Walker. [No. 7. water flowed, had been injured by the manner in which the water of the stream had been dealt with by the defendants, who occupied land higher up, on which was a paper-mill; that the defendants put noxious substances into the stream, which so poisoned and polluted it as to make it unfit for the domestic uses of the plaintiff. The appellant pleaded six pleas. The first stated "that the defendant did not commit the wrong alleged." The second is sufficiently set out in the opinion of the court. The third, that "the defendant did what was complained of by the plaintiff's leave." The fourth stated that upon the said stream of water, and above the said mill of the defendant, were divers other paper-mills, which for a long time, to wit, for a period of more than twenty years, had been used in manufacturing paper; and at which mills, chemicals and other substances of the same kind, quality, and description as those used by the defendant, and complained of by the plaintiff in this action, were employed, and at the time of the committing of the said supposed grievance, and for more than twenty years before the time of the said supposed grievance, the water of the said stream was caused by the owners of the said last mentioned mill (who were other persons than this defendant or said Dushane, and wholly unconnected with them) to be impregnated therewith, and the same water flowed down to the said paper-mill of the defendant, so impregnated; without this, that the water of said stream did flow at and before the time of the said supposed grievance, or was accustomed to flow, or but for said alleged acts and doings of the defendant would have flowed through the land of the plaintiff in as natural and unpolluted a state as the plaintiff had alleged. The fifth plea stated that the said mill of the defendant was an ancient paper-mill, used as such for more than twenty years before the committing of the supposed grievance, and that annexed and appurtenant to it was the right and privilege of making use of the water of the stream for all reasonable purposes and uses belonging to the manufacture of paper, and the water had been so used by the defendant, and not otherwise; which was the same matter complained of by the plaintiff in this action, without this, that the defendant committed the wrong alleged. The sixth stated that upon the same stream of water in the said declaration mentioned, and higher up upon the same than the said mill of the defendant, and also below said defendant's mill, were divers other papermills, which had existed and been used as such paper-mills for many years last past, and for more than twenty years before the committing of the said supposed grievances, and at the said last mentioned time, the water of said stream was used and employed at said mills, in and about the manufacture of paper, and the defendant manufactured paper at his said mill in a reasonable, proper, and customary manner, and not otherwise, and used only such substances and compounds, and employed such methods and processes as were commonly and ordinarily used in the manufacture of paper, and exercised due care in and about said manufacture, and in the use of his said paper-mill, and of said stream, and did not impregnate, alter, or affect said water of said stream more than the business of manufacturing paper, as so by him reasonably conducted, necessarily required. The plaintiff demurred to the second, fourth, fifth, and sixth pleas, and |