Supreme Court, February, 1918. [Vol. 102. many years nine or ten paper mills which have been more or less continuously in operation. These mills have discharged their trade wastes, consisting of wood. wood fibre, and in some instances of sulphurous acid, into this stream. As illustrating the need of distinguishing between polluting solids to be found in the stream, and the fallacy of the argument that because there is pollution these defendants, from the very nature of their effluent, must have caused it, there may be instanced the case of Whalen v. Union Bag & Paper Co., 208 N. Y. 1. In that case a sulphide mill, representing an investment of more than $1,000,000, was restrained from polluting the Kayaderosseras by discharging its mill effluent into the stream at a point upstream from these defendants. As a result that mill has been shut down ever since the year 1913. Many lay witnesses were called by the plaintiff to establish the source of pollution to be the effluent of these defendants. They have sought to identify polluting solids, as fleshings, and hairs, and thus to involve the tannery; they have ascribed a tan bark color to the stream, and sensed a smell of decaying organic matter rising from its waters, in furtherance of the claim that its cause was mill and village sewage. Briefly their testimony is as follows: Driscoll saw particles floating as big as the end of a finger, kind of a slimy, greasy moss with hair in it. Slade said the water was black, thick, heavy, full of hair. Seaman did not identify what he found as fleshings, but in the dirt along the edge of the stream saw little hairs, some white, some dark, some red. DuBois identified no fleshings, but saw a scum along the bank with hairs in it, some dark, some light. Misc.] Supreme Court, February, 1918. He also sensed an odor so strong that he had to close the windows of his house. Rowley could identify no fleshings, but observed the bed was covered with slime, and when he held a bush in the stream it gathered filaments, some wood fibres, some hair, but since the Union Bag mill closed there was no smell of putrefaction. Ramsdill saw no fleshings and identified no hairs, but observed slime in the water, and detected an odor like grease, like a tannery, and saw slimy stuff gathered on the bushes. Ramsdill said when the Union Bag mill was running the water had a yellow milky cast, but now it was black and muddy. Driscoll on the contrary found the water not quite so dark since that mill shut down. Jones found small particles, half an inch long, threequarters of an inch, a quarter of an inch, running through the creek, and a coating on the grass with hairs in it. He noticed an odor from the stream like that of a tannery. Eddy found the water full of a substance which kept turning over and over, some days an inch in diameter, and some days smaller, with lots of white particles mixed through it. He found hairs or a small substance on the bushes, but noticed that the scum on the meadows had disappeared since the sulphide mill closed down. All of these witnesses, except Jones, are riparian owners or dwellers upon the creek, and many of them have claims against these defendants. On the other hand the witnesses Mitchell, Streever, Watkins and Wood found no fleshings or hair in the stream. Streever thought he had found hair, but discovered it to be wood fibre. The same witnesses and Eddy, Parks and Pearse Supreme Court, February, 1918. [Vol. 102. discovered no putrescent odor. Streever sensed a swamp smell at the outlet of the creek. Many of the witnesses found the water dark because of the darkness of the river bed, but when taken from the stream it was as light as any water. Some of them drank the water. Some found it more palatable than well water. A large number of fishermen were called who had fished the stream within the last few years, and made large catches of perch, pike and bass. Some had been caught directly opposite the discharging pipes of the sewage plant. The testimony was given as establishing the presence of free oxygen in the stream, a condition hostile to putrefaction and contradictory thereof. This is substantially a summary of all the lay testimony upon the subject. Much of it relates to a period when the tannery effluent was unscreened and unchlorinated, and the presence of fleshings and hairs in the stream was thus rendered possible. It does not illumine the present situation, and while it may have some bearing upon the question of damages it has little if any upon the issuance of an injunction. On behalf of the plaintiffs, Professor Anthony and a chemist named Ant took samples of the sewage effluent. Ant found sample C, raw sewage, high in organic matter. It was of a dark reddish brown nature, had a putrid odor, and there were pieces of material which would look a good deal like fleshings. The oxygen was high and the bacterial count somewhat low. He found sample D, treated effluent, somewhat improved in suspended solids, and the material was turned from a reddish brown color to a very black. He found the creek water above the plant normal, and two miles below somewhat high in organic matter with an increase of fifty per cent of chlorine. Misc.] Supreme Court, February, 1918. At this time the tannery effluent was treated with hypochlorite of lime. This had an oxidizing or burning effect upon the solids. It released oxygen which was hostile to the anaerobic bacteria. In the course of half or three-quarters of an hour the tannery effluent joining with the domestic sewage reached the receiving basin of the disposal plant. From here it was pumped into septic or settling tanks to remain eight or ten hours. It was then poured out upon contact beds, or beds of broken stone in water tight compartments. The purpose of the septic tanks was to liquify or gasify the solids through the action of the anaerobic bacteria. These bacteria, as their name indicates, perform their work in the absence of air or oxygen. They hasten putrefaction and destruction of organic solids. The purpose of the contact beds was to take the solid residue from the septic tanks and purify it by oxidation. It was the opinion of Ant that a septic process was started in the tanks which was not completed. In other words, that septic action was retarded in the tanks, so that putrefaction continued on the contact beds and afterwards in the stream. Anthony found the contact beds so clogged that the sewage was getting no oxidation, but continuance of the septic process. It seemed to be his opinion that chlorine injected at the plant did not have sufficient time to act before the effluent arrived at the septic tank to break down the solids; that the chlorine acted to deter bacterial action; and thus undestroyed solids came to the contact beds in a septic state, and there through clogging oxidation was inhibited. Both Ant and Anthony detected chlorine in the disposal effluent. The experts for the defendant, Eddy and Johnson, both testified that if sample D was a fair sample of the effluent from the disposal plant that plant was not Supreme Court, February, 1918. [Vol. 102. working to high efficiency or satisfactorily. Johnson said such an effluent would cast a heavy burden upon the stream. One difficulty with sample D is that it was taken in August, 1915, when the screening and chlorinating system at the tannery was entirely different from what it became shortly thereafter. At this time the only screening done was by means of quarter inch rods set one-half inch apart. Later the Riensch Wurl screen was installed, and went into operation on February 22, 1916. This screen consists of a revolving perforated circular brass plate set almost vertically in a channel which it completely blocks. More than half of it is submerged in the flowing sewage. As that effluent comes down, the liquid passes through the perforations in the revolving plate. The diameter of each perforation is one-thirtysecond of an inch. The solids are lifted by the plate as it revolves, and when by its turn they are above water they are swept therefrom by revolving brushes and carried to the surface of the ground. It is quite evident that no fleshings and few hairs could pass through the holes in the screen, which as said were but one-thirty-second of an inch in diameter. Jackson states the reason for the installation of this screen: "There were at times particles of rather larger size than ordinary which would not be properly penetrated by the chlorine gas. If the particles coming from the factory are of too large a size, there might be at times a possible lack of sterilization, a lack of penetration of those larger particles." Also, at the time of the taking of samples D chlorination was done by means of hypochlorite of lime. In September, 1915, a liquid chlorine plant was installed. Liquid chlorine pound for pound has three times the chlorine content of hypochlorite of lime. By using |