"In both cases the owners cause water to rise from the earth, to become foul, and then to be carried by an artificial drain, and discharged into a running stream, the natural watercourse of a basin or valley in which the water arises, and into which stream the water would naturally flow if left to itself. In both cases the owners were en gaged in a lawful and necessary work, of great advantage to mankind at large, and particularly to the community in which they operated; the one in mining out of the earth and distributing coal for heating and industrial use, and the other also taking out of the earth mineral water for healing and curing the infirm. Both were free from fault or negligence in conducting their business, and in avoid ing, so far as possible, all injury to others; the injury in each case being but the necessary incident of a lawful business. In each case there was no other place but the stream for the water to go, so that, if it was unlawful to discharge the water into the stream, then the enterprise itself of a necessity would be at a standstill, and a lawful business thus come to an end because it could not be lawfully carried on. It would seem that the decisions show that when a business is dangerous, unhcalthful, or other wise greatly injurious to a community or to an individual, and it is possible to avoid the injury by a more careful management, or even, if necessary, by a removal of the works to a more secluded or less objectionable place, then the owners of the noxious business will be mulcted in damages, and if necessary, restrained by the courts. We have seen that in the case of Parker v. Larsen supra, when it appeared that the defendant could flow water from his artesian wells over his fields without injury to his neighbor, but did not do so, he was enjoined. In the case of Indian apolis Water Co. v. American Strawboard Co., 53 Fed. Rep. 970, where there was a discharge of refuse matter from a strawboard factory into a non-navigable river used by a water company as a source of supply for furnishing a city with water for domestic and other purposes, it was held that injunction would lie to restrain such pollution of the water supply. In Kinnaird v. Oil Co., 89 Ky. 468, de fendant had stored petroleum which leaked and percolated through the ground until it reached the plaintiff's spring of water. Gas Light & Coke Co. v. Graham, 28 Ill. 73, was a similar case, the offensive substances percolating from the gas works into plaintiff's well. Also Gas Co. v. Murphy, 39 Pa. St. 257. Either of two courses could have been followed by the offending defendants in these last three cases. They could improve their works so that the oils would not leak and percolate through the earth to the fouling of the water, or they could remove their works to another locality. Accordingly damages were assessed in each case for the injury. So of various kinds of dangerous or offensive mills, factories, or other establishments or occupations. If they are conducted ill such a manner as to materially and essentially injure adjoining proprietors, the owners may be subject to suits for damages,. or, in case the injury is continuous, the business may be en joined. But in this class of cases either a change in the method of conducting the business so as to avoid the injury, or else a total removal of the works to another and safer locality, may be had. But the case before us does not belong to this class. Railroads must reach our cities and the marts of trade. They cannot do business else
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where. Mines and mineral springs, natural gas and oilwells cannot be removed. They must be operated where they are, or totally abandoned. Where, therefore, a work is lawful in itself and cannot be carried on elsewhere than where nature located it, or where public necessity requires it to be, then those liable to receive injury from it have a right only to demand that it shall be conducted with all due care, so as to give as little annoyance as may reason ably be expected; and any injury that may result notwith standing such care in the management of the work must be borne without compensation. It is then a case in which the interests and convenience of the individual must give way to the general good."
Voluntary Services. — In Cole v. Clark, 85 Me. 336; 21 L. R. Ann. 714, it was held that a friendly loan of tools and a trifling service rendered as a courtesy, without expectation of payment there for, cannot be regarded as labor for the purpose of extending the time for filing a mechanics' lien based on previous services. The Court said : — "If in a particular case, it satisfactorily appears from the situation, conduct, and mutual relations of the parties that the service was proffered as an act of friendly accommo dation or otherwise, rendered without expectation of pay ment at the time, no promise to pay will afterwards be implied, though a new exigency may arise from the changed relations of the parties. Bishop, Cont. §§ 219, 220; Metcalf Cont. 4; Brown v. Tuttle, 80 Me. 162; Godfrey v. Haynes, 74 Me. 96; Potter v. Carpenter, 76 N.Y. 157; Woods v. Ayres, 39 Mich. 345, 33 Am. Rep. 396. The law will not thus permit what was intended at the time as an act of kindness or courtesy to be subsequently con verted into the foundation of a pecuniary demand. "In the case at bar the plaintiff's loan of his unused tools for a few minutes was manifestly but an act of friendly ac commodation, granted to a fellow workman without ex pectation of reward. In like manner, the trifling service performed by the plaintiff in receiving from the foreman's hand a board which might otherwise have been allowed to fall to the floor without danger of injury was unmistakably one of those natural and spontaneous acts of courtesy which daily mark the friendly intercourse of men, and enter into the amenities of all social life. It was unquestionably a voluntary and gratuitous act of kindness and civility, per formed without thought of compensation on the part of either, and under circumstances which distinctly repel any implication of a promise to make payment." The ancestor of all such cases in this country is Brown v. Bartholomeu, 20 Johns. 29, which was an action for services in removing the defendant's stack of wheat endangered by a fire set in a wheat stubble field by the plaintiff himself. The Court said: "If a man humanely bestows his labor and even risks his life, in voluntarily aiding to preserve his neighbor's house from destruction by fire, the law considers the service rendered as gratuitous, and it therefore forms no ground of action."
