## Facts

- Robert E. Whalen owned farmland downstream on Kayaderosseras Creek in Saratoga County, New York.
- Union Bag & Paper Co. operated an upstream pulp and paper mill that discharged substantial industrial waste into the creek as part of ordinary operations.
- The discharges included chemical waste (including sulfur and sulfurous acid) and other refuse that degraded water quality.
- The pollution was continuing and recurring, interfering with Whalen’s use and enjoyment of his property and his riparian right to reasonably pure water.
- The mill represented a large capital investment and provided significant local employment; the company argued that an injunction would impose severe economic loss compared to Whalen’s relatively small proven monetary damages.

## Issues

1. Whether equity should deny an injunction against a continuing stream pollution nuisance and limit the plaintiff to money damages because an injunction would impose far greater economic loss on the defendant than the plaintiff’s quantified harm.
2. Whether recurring pollution that substantially impairs riparian rights makes legal damages an inadequate remedy warranting injunctive relief.

## Decision

- The New York Court of Appeals reversed the Appellate Division.
- The court reinstated the trial court’s injunction restraining the defendant from continuing to pollute the creek in violation of the plaintiff’s riparian rights.
- The court rejected withholding injunctive relief merely because the defendant’s economic hardship would exceed the plaintiff’s monetized loss.
- The court treated the pollution as a continuing wrong for which repeated or speculative damage awards were not an adequate substitute for prevention.

## Legal Principles

- A substantial, continuing interference with established property or riparian rights is ordinarily subject to injunctive relief.
- A defendant cannot justify continuing a nuisance by showing that stopping it would be more expensive than paying the plaintiff’s damages; the size or utility of the defendant’s enterprise does not legalize the wrong.
- Where the injury is continuous and recurring, and damages would require repeated litigation or uncertain valuation, legal remedies may be inadequate and equity may enjoin the conduct.
- Riparian owners are entitled to the natural flow of a watercourse in substantially unimpaired quality, subject to reasonable use by others; substantial pollution that impairs that right supports equitable intervention.

## Conclusion

The court held that continuing industrial pollution that substantially invades riparian property rights should be enjoined, and it refused to deny an injunction based solely on a comparison between the plaintiff’s modest monetary loss and the defendant’s greater economic hardship from abatement.


Whalen v. Union Bag & Paper Co., 101 N.E. 805 (N.Y. 1913)