prietors, and to such further use, if any, on their part in connection with their property as may be reasonable under the circumstances. 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.

These principles are applicable to public bodies as well as private persons. While private rights, however, may be overridden by the acquisition of a prescriptive right, public rights can not. Without exception the riparian communities which pollute the waters of the boundary rivers do so in violation of the principles of the common law.

Inadequacy of common law.

It must be observed, however, that the circumstances under which these principles were evolved have greatly changed, and the physical features of the boundary rivers differ very much from those of the streams of England, where the common law originated. When settlements had been made along our boundary waters to an extent that urban communities commenced to grow, and sewerage systems in consequence of this growth began to be installed, such was the immensity of these rivers that settlers living farther down stream probably neither noticed nor protested against the discharge into them of what was relatively an infinitesimal amount of pollution. When these communities, therefore, installed sewerage works they took advantage of the diluting powers of the rivers, and resorted to the simple and inexpensive expedient of discharging into them their sewage in its raw condition. The custom of doing so has now become universal. The selfishness of vested interests, familiarity with evil conditions, which has begotten an indifference to both the doing and the suffering of wrong, an ill-directed spirit of economy averse to the assumption of financial burdens to remedy what was only regarded as an existing or potential evil to other communities, and the disinclination to change ingrainted in humanity, have resulted in a situation along the frontier which is generally chaotic, everywhere perilous, and in some cases disgraceful. The common law having proved inadequate to the task of controlling affairs, it has been supplemented or superseded by legislative enactments, which in their practical working have about as signally failed.

Changed nature of problem of "injury."

The great difficulty is that in the United States and in Canada, as in all countries, in fact, modern development, social and economic, has introduced a number of new elements into the question of sewage purification which call for the reconsideration of views and methods which have fallen into disuse.

It must be admitted that the conservation of public health is of paramount importance under the treaty. This is Sanitary considera- evident from Article IV to which reference has been made. The significance of sanitary considerations is also evidenced by Article VIII of the treaty,

tion first in order of procedure.

which contains the following provisions:

The following order of procedure shall be observed among the various uses enumerated hereafter for these waters (meanng boundary waters), and no use shall be permitted which tends materially to conflict with or restrain any other use which is given preference over it in this order of procedure:

1. Uses for domestic and sanitary purposes.

2. Uses for navigation, including the service of canals for the purposes of navigation.

3. Uses for power and for irrigation purposes.

"Injury" a complex question.

*

Although this order of procedure is in respect to certain uses enumerated in this particular article, it may be taken as indicative of the view of the high contracting parties regarding the importance of sanitation. Notwithstanding this, the discharge of sewage into streams can not be looked upon exclusively from the standpoint of its harmful effects upon health and property. The reference itself does not so look upon pollution. One of the questions in its second branch is, "By what means or arrangement can a system or method of rendering these waters sanitary and suitable for domestic and other uses be best secured and maintained in order to insure the adequate protection and development of all interests involved on both sides of the boundary?" The growth and development of riparian communities would be seriously arrested if pollution were looked upon from this standpoint exclusively. While public health is the paramount consideration, it must be looked upon, however, as only one of a large number of elements in the many-sided and complex question of the public weal.

The pollution of rivers in England has been the subject of investigation by royal commissions which have been studying the question very thoroughly and almost continuously for about 50 years. Their investigations have covered nearly all the rivers of England and practically all the various phases of the problem of river contamination, and the voluminous reports submitted by them from time to time are very valuable and deserving of careful study. The conclusions and recommendations made in these reports, while recognizing sanitary considerations as first in order of precedence, are based upon the implied assumption that the solution of the problem lies in the proper balancing of the various conflicting elements existing in the individual cases.

"Injury" as between lower and upper communities.

The parties who appeared before the commission discussed the question of "injury" almost entirely as viewed from two standpoints: First, from the standpoint of the relation between the riparian communities which pollute the waters of the streams and those communities which suffer in consequence of the pollution of their water supply; and, second, from the standpoint of the agriculturists, the floating population of summer resorts, casual visitors, picnickers, campers, yachtsmen, and crews and passengers of vessels frequenting boundary waters.

The difficulties arising from viewing the situation from the first standpoint will appear by considering the supposititious case of town "A" and town "B," the first town being situate above the other on the same bank of a boundary stream, the former discharging raw sewage from its sewerage system into the river, the latter being obliged to drink the water thus contaminated or to purify it at its own expense. To compel "A" to purify its sewage absolutely or completely would, under present conditions and in the present state of sanitary engineering practice, involve a financial burden too great for that town to bear, a burden which might retard its progress both industrially and in respect to population. On the other hand, to permit "A" to relieve itself of any reasonable financial burden by throwing its raw sewage on the waterworks intake of "B" and thus compelling that town either to drink contaminated water, or to assume an unreasonable financial burden in purifying it, would be an act of injustice which no fair-minded community, with a proper appreciation of the evil inflicted, would perpetrate or continue, and one to which no community should be asked to submit. If the harm which would be done "B" could be remedied, however, by the assumption of a financial burden which would be reasonable under all the circumstances of the case, there would not be an "injury " within the meaning of the reference or the treaty. From the second standpoint, that of the agriculturist, the floating population of summer resorts, etc., the question of "injury" under the reference is much more difficult one. The shores and islands of the boundary rivers and lakes must particularly be considered. Their scenic attractions, their pure air and salubrious climate, their opportunities for bathing, fishing, and yachting, and their ease of access, affording facilities for rest, enjoyment, and health restoration to unlimited numbers, are invaluable assets, factors in progress and civilization which should not, unless under the pressure of absolute necessity, be destroyed. The harm done by existing pollution to bathing resorts can not be remedied except by preventing the discharge of sewage into the waters which flow to them. Contamination of the sources of the drinking supplies of these classes of people is a most serious matter. The millions whom it affects or may affect are

"Injury" from the

standpoint of summer residents, etc.

87873-18- -3

more exposed to danger than are the urban inhabitants who draw their water supplies from public water systems. Such systems have been installed by sanitary engineers and generally afford a reasonably pure drinking water. These classes, however, have no such protection and it is difficult to dévise adequate means of protection which they could utilize. The fact that they consist in a large measure of children, especially at the summer resorts, must also be taken into account. What would, therefore, be an "injury" to them might not be an “injury" to riparian communities with water-purification systems.

99

“

Jury as used in the reference.

The commission regards the word "injury " when used in the reference or treaty as having a special signification-one Definition of "in- somewhat akin to the term 'injuria' in jurispru dence. It does not mean mere harm or damage, but harm or damage which is in excess of the amount of harm or damage which the sufferer, in view of all the circumstances of the case, and of all the coexistent rights (if it be permissible to use the term in this connection), and of the paramount importance of human health and life, should reasonably be called upon to bear. In the case of the Detroit and Niagara Rivers pollution exists on one side of the boundary line which unquestionably troit and Niagara Blv- is an "injury" within the meaning of the treaty to health and property on the other.

ers.

“Injury " in De

In the case of

"Injury" in Ralny

and St. John Rivers.

the Rainy River and the St. John River, pollution also exists on one side of the boundary line which is an "injury" within the meaning of the treaty to health and property on the other.

In the case of these four rivers the pollution is transboundary both in its effect and extension.

In the case of the other boundary rivers the commission is unable to say that at the present time pollution does exist on either side of the boundary line to the injury of property upon the other, although it is of the opinion that at times it does. As populations along their banks grow, pollution having both transboundary extension and transboundary effect will doubtless increase.

In the division of this report which treats of pollution having transboundary effects a broader view of the question of pollution is taken than the literal words of the reference and treaty might be thought to justify. In the broad view there expressed pollution exists throughout the whole range of boundary waters, which is an "injury" to health and property in both countries, and comes within the spirit of the prohibition of Article IV of the treaty. It is now necessary to consider the limits of permissible pollution, or the extent to which pollution which might cause this "injury" should be restricted.

VI. LIMITS OF PERMISSIBLE POLLUTION AND STANDARDS OF SEWAGE PURIFICATION.

Two distinct lines of policy with regard to the disposition of sewage in boundary waters were suggested to the commission. (1) To look upon them as open sewers for the reception of riparian pollution of all kinds, and (2) to restore the purity of the boundary waters as far and as fast as a comprehensive and adequate appreciation of all interests involved will permit.

The first policy would not only be contrary to the treaty and the principles of international law, but the continued discharge of untreated sewage into boundary waters by either country would, in the case of the Niagara and Detroit Rivers especially, be increasingly injurious to its own riparian communities farther downstream. The advisory engineers in their résumé, which has already been set forth in full in this report, say:

Opinion of advisory engineers. "A" as to the discharge of raw sewage in boundary waters.

While realizing that in certain cases the discharge of crude sewage into the boundary waters may be without danger, it is our judgment that effective sanitary administration requires the adoption of the general policy that no untreated sewage from cities or towns shall be discharged into the boundary waters. (Sec. 6.)

Water supplies taken from streams and lakes into which the sewage of cities and towns is directly discharged are safe for use after purification, provided that the load upon the purifiying mechanism is not too great and that a sufficient factor of safety is maintained, and further provided that the plant (Sec. 2.)

"B" as to feasibility of purifying water after pollution.

is properly operated.

"C" as to utilizing streams for dilution.

In waterways where some pollution is inevitable and where the ratio of the volume of water to the volume of sewage is so large that no local nuisance can result, it is our judgment that the method of sewage disposal by dilution represents a natural resource and that the utilization of this resource is justifiable for economic reasons, provided that an unreasonable burden or responsibility is not placed upon any water-purification plant and that no menace to the public health is occasioned thereby. (Sec. 5.)

"D" as to the load of purification plant.

This "burden or responsibility" is a very important element to be considered in arriving at a standard of purification or the limits of permissible pollution. The advisory engineers were interrogated very fully on this subject at the New York conference and were pressed to define this limit in as exact terms as possible. contained in the fourth section of their résumé:

Their answer is

While present information does not permit a definite limit of safe loading of a water-purification plant to be established, it is our judgment that this