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Argument for Defendants.

200 U.S.

Board of Health reports, do not disclose any real increase of typhoid fever, or, at most, a doubtful or a halting one, such as might be expected in a World's Fair city, with a considerable influx of population that admits of continuous sources of infection. No explosive outbursts of typhoid fever, such as characterizes water-borne epidemics, followed the opening of the drainage canal.

The evidence in this case establishes affirmatively, by a preponderance of the testimony, the following propositions:

(a) The typhoid germ entering the sewers of Chicago will not survive the journey to the intake tower of the city of St. Louis in a virulent condition and be able to cause typhoid fever among the inhabitants of the city of St. Louis.

(6) Typhoid germis from Chicago will not make the journey to the Mississippi River and become a danger and a menace to the inhabitants of the State of Missouri taking their water supply from the waters of the Mississippi River.

(c) That the opening of the drainage canal is not a danger and a menace, present or impending, to the inhabitants of the State of Missouri taking their water supply from the Mississippi River.

(d) That a typhoid germ leaving the sewers of Chicago, by way of the drainage canal, will have perished long before Grafton is reached on the Illinois River.

The necessity of purifying by filtration or other means the water supply of the city of St. Louis, as the same is derived from the Mississippi River, existed as far back as 1866, and was so recognized by the authorities in St. Louis, and has continued to be so recognized up to the present time.

The opening of the drainage canal has in no manner increased the necessity which has heretofore existed for purifying by filtration the water supply of St. Louis, and in the installation, operation and maintenance of a filtering plant sufficient to meet the requirements of St. Louis, the opening of the drainage canal has created no added cost.

The evidence in this case establishes the fact conclusively

200 U.S.

Argument for Defendants.

that the sewage discharged into the Missouri and the Mississippi Rivers by the cities situated within the jurisdiction of complainant is sufficient of itself to contaminate and infect the water supply of those cities in Missouri obtaining their water supply from the Missouri and Mississippi Rivers, exclusive of all other sources of contamination or pollution entering said stream.

There is no testimony offered in evidence in this case showing that any damage has been sustained by complainant, the State of Missouri, by virtue of the opening of the drainage canal, much less any that can be measured in dollars and cents.

In the prosecution of the work of the Chicago drainage canal by the defendant, the sanitary district of Chicago, at an expenditure of over $42,500,000, the complainant had knowledge of this great public improvement and has stood by in silence and acquiesced impliedly in its construction. 2 Wood on Nuisances, $$ 804-806; Gould on Waters, $$ 530, 533.

It is the well established doctrine of the Supreme Court of the United States that laches on the part of the complainant is a bar to the granting of equitable relief. This is especially so where the lack of diligence on the part of the complainant has led the defendant to place himself in a position from which he cannot escape or recede without great loss and inconvenience.

The question of laches does not depend as does the statute of limitations upon the fact, that a certain definite time has elapsed since the cause of action accrued, but whether under all the circumstances of the particular case plaintiff is chargeable with a want of due diligence in failing to institute proceedings before he did. McKnight v. Taylor, 1 How. 168;

1 Badger v. Badger, 2 Wall. 87; Twin Lake Oil Co. v. Marbury, 91 U. S. 587; Hayward v. Elliot National Bank, 96 U. S. 611; Harwood v. Cincinnati & C. Air Line Co., 17 Wall. 79; A peidel v. Henrici, 120 U. S. 377; Galiher v. Cadwell, 145 U. S. 368; Hammond v. Hopkins, 143 U. S. 224; Willard v. Wood, 164 U. S. 502; Sullivan v. Portland & K. R. Co., 94 U. S. 806; Lans

VOL. CC-33

Argument for Defendants.

200 U.S.

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dale v. Smith, 106 U. S. 391; Lane & B. Co. v. Locke, 150 U. S. 193; Mackall v. Casilear, 137 U. S. 556; Whitney v. Fox, 166 U. S. 637; Gildersleere v. New Mexico Min. Co., 161 U. S. 573; Ware v. Galveston City Co., 146 U. S. 102; Foster v. Mansfield C. & L. M. R. Co., 146 U. S. 88; Hoyt v. Latham, 143 U.S. 553; Hanner v. Moulton, 138 U. S. 486; Richards v. Mackall, 124 U. S. 183; Roberts v. Northern P. R. Co., 158 U. S. 1. See also Wilson v. Anthony, 19 Barb. (Ark.) 16; Taylor v. Adams, 14 Barb. (Ark.) 62; Johnson v. Johnson, 5 Alabama, 90; Fuson v. Sanger, 2 Ware, 256; Fisher v. Boody, 1 Curtis, 219; Cholmondy v. Clinton, 2 Jac. & Walk. 141; Smith v. Clay, Ambler, 6:15; Johnston v. Standard Mining Co., 148 U. S. 360.

Equity will not interfere to aid a plaintiff who has stood by in silence and has acquiesced implieilly in the expenditure of large sums of money by the defendant in the belief that his work was rightful and would never be interfered with. High on Injunctions, $$ 618, 643, 884; Wendell v. Van Rensselaer, 1 Johns. Ch. 313; Dougrey v. Topping & Holme, 4 Paige Ch. 93; Town v. Needham & Harvey, 3 Paige Ch. 546; Blanchard v. Doering, 23 Wisconsin, 200; Sprague v. Steere, 1 R. I. 247; Patterson v. Heuitt, 55 L. R. A. 658, 662, 670; Swain v. Seamens, 9 Wall. 254, 273, 274; 2 Pomeroy Eq. Jur., $S 816821; Niven v. Belknap, 2 Johns. N. Y. 572, 588, 589; Rochdale Canal Co. v. King, 2 Simons N. S., 78; Wood v. Sutcliffe, 2 Simons (N. S.), 163; Birmingham Canal Co. v. Lloyd, 18 Ves. 515; Ripon v. Hobart, 3 Mylne & K. 169; Barrett v. Blagrave, 6 Ves. 104; Binney's Case, 2 Bland. Ch. 99; Jacox v. Clark, Walk. Ch. 249; Gray v. Ohio & Penn. R. R., 1 Grant's Cases, 412; Dunn v. Sprevier, 7 Ves. 235; Bassett v. Company, 47 N. H. 426; Bliss v. Pritchard, 67 Missouri, 181, 190; Landrum v. Union Bank, 63 Missouri, 48. . See also Eston v. N.Y. & L. B. R. R., 24 N. J. Eq. 49.

The court of equity will refuse to grant an injunction when it appears that greater injury and inconvenience will be caused to the defendant by granting the injunction than will be caused to the complainant by refusing it.

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200 U. S.

Argument for Defendations

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The courts will require a very strong case for injury comof an injunction which will cause more injury than luoom, remedy, and it may be said, as a general rule, that an injunction will not be granted where it will be productive of greater injury than will result from a refusal of it. This rule is especially applicable when the party applying for an injunction has by his own laches made it impossible to grant the injunction without inflicting serious injury on the party so to be enjoined. 16 Am. & Eng. Ency. of Law, 2d ed., 363, 364; Spelling on Extraordinary Relief, $823, 372; Edwards v. Allonez Mining Co., 38 Michigan, 46; Clifton v. Dye, 87 Alabama, 468; Richard's Appeal, 57 Pa. St. 114; Hall v. Rood, 39 Michigan, 46; Campbell v. Seaman, 63 N. Y. 568.

A court of equity will not grant an injunction to restrain a party from committing a nuisance when the evidence shows that the party complaining is guilty of contributing to the nuisance of which he complains. If the granting of an injunction will not relieve him from the consequences of his own acts the injunction will not issue. If the complainant contributes to the conditions which it claims in its bill of complaint will injure it as a State, it cannot obtain equitable relief.

It is the fundamental principle of equity that “He who seeks equity must do equity,” and out of this grows the maxim that“ He who comes into equity must come with clean hands.” In other words, courts of equity will not enjoin one from doing a lawful act upon the application of one who, while claiming said act will cause him great and irreparable injury, is himself contributing to the injurious condition complained of. In such case the parties are in pari delicto. 11 Paige Ch. 349.

If the plaintiff himself has contributed to the pollution he cannot recover against an upper proprietor. Gould on Waters, $ 219; Water Supply Co. v. Potwin, 43 Kansas, 408; Ferguson v. Firmenich Mfg. Co., 77 Iowa, 576. See also Cassady v. Cavenor, 37 Iowa, 300; Richards v. Waupun, 59 Wisconsin, 45; Mowday v. Moore, 133 Pa. St. 598; Comstock v. Johnson, 46

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argument for Defendants.

200 U.S.

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U, T'almer v. Harris, 60 Pa. St. 156; Jacksonville v. dale y vune, 145 Illinois, 23.

The cities, towns and villages in the State of Missouri, situated upon the shore of the Missouri River, which are contributing to the nuisance complained of in this suit, are all agencies of the State; their acts in so contributing will be imputed to the State, and it should not be given relief from a condition to which its agencies are so materially contributing.

An injunction to restrain a nuisance will issue only in a case where the fact of nuisance is made out upon determinate and satisfactory evidence. If the evidence be conflicting and the injury be doubtful, that conflict and doubt will be a ground for withholding the injunction, and where interposition by injunction is sought to restrain that which is apprehended will create a nuisance of which its complainant may complain, the proof must show such a state of facts as will manifest the danger to be real and immediate.

A careful consideration of all the testimony fails to establish as a fact that the opening of the drainage canal is a nuisance, causing complainant great and irreparable injury. The contention made by complainant has not been made out upon determinate and satisfactory evidence. The evidence is conflicting and the injury doubtful, and consequently complainant is not entitled to the relief prayed for. The evidence establishes affirmatively that Missouri, as a State, is not injured or damaged by virtue of the opening of the Chicago drainage canal, but on the contrary, if there has been an injury established in the evidence in this case as suffered by the inhabitants of the State of Missouri from the use of the waters of the Mississippi River, that injury has been caused by the inhabitants of the cities, towns and villages within the jurisdiction of complainant who have emptied their sewage into the Missouri and Mississippi Rivers at points above the places where the alleged injury is supposed to have existed. The evidence upon which damage is predicated is speculative and theoretical, and insufficient to show that the opening of the

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