where some pollution is inevitable, but where the dilution is sufficiently great to prevent nuisance, 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 undue burden or responsibility is not placed upon any water purification plant and that no menace to the public health is occasioned thereby.

It was the suggestion of the engineers that while the then available information would not permit the establishment of a definite limit for safe filter loading, the limit would be exceeded, if the annual average number of B. coli in the water delivered to the filter plant was higher than about 500 per 100 cc. or if in 0.1 cc. samples B. coli were found 50 per cent of the time. It is to be borne in mind that this suggested B. coli content was based on bacteriological methods in current practice prior to 1912. It was estimated that a dilution of sewage equivalent to 4 cu. ft. per second per capita would give a resultant B. coli count of approximately 500 per 100 cc. Conclusions of Commission. The Commission agreed with the statement of principles set forth by the advisory engineers and recommended that all sewage, before being discharged into boundary waters, should receive some "purification treatment," the degree of such treatment to be determined in a large measure by the limits of safe loading for water purification plants. The Commission stated that the necessary data were not at that time sufficiently well established for the formulation of a fixed standard either as regards sewage treatment or water purification.

It must be recognized, of course, that the opinions and conclusions of the Commission and its advisory engineers applied to the Great Lakes system only. Although the Commission did not formulate definite standards relative to the safe loading for water purification plants, their tentative conclusions can be used as an aid to judgment in the selection of sources of water supplies, in the re-location of water intakes and in deciding as to the necessity for sewage treatment where water supplies are affected by discharge of sewage.

It is also evident that there are other factors besides annual average B. coli content which must be taken into consideration. Among these factors are the character of the raw water from a physical and chemical standpoint, the rapidity and extent of variations

of the bacterial contamination, the character of the pollution, whether direct or indirect, the point of pollution with respect to the location of water works intakes, the effect of currents and times of flow and the character of the water and physical conditions affecting the longevity of disease organisms.

In establishing a standard for raw waters all conditions affecting the ease of purification and the probable degree of infectiousness of the unpurified water must be considered.

List of publications of the International Joint Commission relative to the pollution of boundary waters

1. Preliminary report of the committee having general supervision of the investigation relating to the pollution of boundary waters, with documents on file in the United States War Department relating to the petitions of the Erie and Ontario Sanitary Canal Company for permission to divert 6000 second-feet from Lake Erie for the purpose of remedying the existing pollution of Niagara River. Washington, 1913.

2. Progress report of the International Joint Commission on the reference by the United States and Canada in re the pollution of boundary waters, whether or not such pollution extends across the boundary in contravention of the treaty of January 11, 1909, and, if so, in what manner or by what means is it possible to prevent the same, including report of the sanitary experts. Washington, 1914.

3. Pollution of boundary waters. Conference with sanitary engineers at New York City, May 26 and 27, 1914. Washington, 1914.

4. Résumé of testimony of consulting sanitary engineers in the matter of the pollution of boundary waters. Conference at New York City, May 26-27, 1914. Washington, 1914.

5. Hearings of the International Joint Commission in re remedies for the pollution of boundary waters between the United States and Canada, held at Niagara Falls, Ontario, Buffalo, N. Y., Detroit, Mich., Windsor, Ontario, Port Huron, Mich., and Sarnia, Ontario, September 25 to October 2, inclusive; Detroit, Mich., November 10 and 11; and Washington, D. C., December 14 and 16, 1914. Washington, 1914. 6. Hearings of the International Joint Commission in re remedies for the pollution of boundary waters between the United States and Canada, being public hearings held at Buffalo, N. Y., and Detroit, Mich., June 21-27, 1916, and Ogdensburg, N. Y., August 25, 1916. Washington, 1917.

7. Report of the consulting sanitary engineer upon remedial measures. March 8, 1916. Washington, 1918.

8. Final report of the International Joint Commission in the matter of the reference by the United States and the Dominion of Canada relative to the pollution of boundary waters. Washington, 1918

LIABILITY FOR DISEASE CONTRACTED FROM A WATER SUPPLY?

It is settled law in this country that an individual or a municipal or other corporation, supplying water to the public, is not an insurer or guarantor of the purity of the water furnished. In case a consumer contracts typhoid fever or some other disease from drinking such water, however, he can recover damages from the person or corporation supplying water if he proves by a preponderance of evidence that the person or corporation supplying the water has been negligent in failing to take the necessary steps to purify the same, and that such negligence was the proximate cause of the sickness or death for which damages are claimed.

The question of liability for disease or death caused by contaminated water supplies has been before the courts of last resort in this country in a number of instances. The rule of law which has been uniformly laid down is to this same effect, that the corporation or individual supplying water is liable only if it has been negligent or careless in permitting the disease to be disseminated through the water it provides. It is, of course, the function of the courts to apply and interpret the law as promulgated by the legislative and enforced by the executive branches of our tripartite system of government. In the absence of a statute on the subject, the courts will apply the principles of the common law, and their decisions will also become a part of the unwritten, or common law. By the doctrine of stare decisis (literally "let the decision stand"), the decisions become precedents for the State in which they were delivered and will be followed in all subsequent cases along the same lines, provided, of course, that the law has been correctly stated and not misapplied or misunderstood. It is to the court decisions, therefore, that we must look for a statement of the legal principles governing liability for disease or death caused by water supplies.

The court in the case of Hayes v. Torrington Water Company, 1914, 88 Ct. 609, stated in very accurate form the duty which rests upon an individual or corporation supplying water. The court. used the following language:

Such a corporation is not a guarantor of the purity of its water or of its freedom from infection; but it is bound to use reasonable care in ascertaining

2 For a more extended discussion of this subject see Public Health Law; A Manual of Law for Sanitarians, by James A. Tobey, The Williams & Wilkins Company, Baltimore (1925).

whether there is a reasonable probability that its water supply may be infected with a communicable disease from causes which are known to exist, or which could have been known or foreseen by the exercise of such care, and if the exercise of such care would have disclosed a reasonable probability of such infection, then it becomes the duty of a water company to adopt whatever approved precautionary measures are, under the circumstances of the case, reasonably proper and necessary to protect the community which it serves from the risk of infection.

It has been held, for instance, that a water company was not liable for sickness caused by supplying polluted water where the pollution of the water was caused by typhoid fever patients located on a creek a mile and a half above the point where the water company derived its supply. The court held that the water company was not guilty of negligence in furnishing to its consumers such polluted water, because it was not shown that the company had notice of the existence of the typhoid fever cases up the creek and it was not the company's duty to ascertain such fact. (Buckingham v. Plymouth Water Company, 1891, 142 Pa. St. 221, 21 Atl. 824.)

In each case the question as to whether the water company or persons supplying water have been guilty of negligence is a question to be decided by the jury, having in mind all the peculiar circumstances of the case which might affect the situation. In other words, the question of negligence depends upon the facts of each particular

The liability of the water company for negligence depends upon whether it has taken all the measures and precautions for purifying the water which the particular circumstances of the case might render advisable. In view of these principles, it is very likely that the decision of the court in Buckingham v. Plymouth Water Company, discussed above, might not be followed today. In that case, the court went so far as to hold that a water company was not required to analyze its water at the intake to determine whether or not bacteria were present. In the light of advances in sanitation and methods of purifying water at the present time, it seems reasonable that a water company should at least make analyses of its water supply in order to perform its duty of due care and avoid liability for negligence. Reference may here be made to the case of Hayes v. Torrington Water Company, cited above, which was decided in 1914. In this case the evidence showed that the company's filtration system was inadequate and the water had not been analyzed for many years. One of the consumers contracted typhoid

fever from water furnished by the company and the court held that the above facts appearing from the evidence were sufficient to justify a verdict for negligence against the water company.

In the case of Canavan v. City of Mechanicsville, 1920, 229 N. Y. 473, the above proposition, namely, that a water company or a person or municipality is not the guarantor of the water which it furnishes, was applied by the court. The evidence in that case merely showed that the plaintiff had contracted typhoid fever from drinking polluted water furnished by the city water plant, but there was no evidence that the city had been negligent in any way. The plaintiff contended that the city was liable upon the basis of an implied warranty of the water which it furnished. The court rejected this contention and held that the city was not liable, since it was not proved that it had been negligent in any way in furnishing water to its consumers.

In the case of Gosser v. Ohio Valley Water Company, 1914, 244 Pa. St. 59, 90 Atl. 54, the plaintiff presented evidence which showed that the city had furnished polluted water to the deceased husband of the plaintiff and that he had contracted typhoid fever and died. It also appeared that the deceased had been drinking water from other cities shortly before he contracted the disease. The court held that on the above evidence the plaintiff could not recover from the water company, principally because it was not shown that the polluted water furnished by the Ohio Valley Water Company was the cause of the death of the plaintiff's husband.

In the following cases it is likewise stated that a water company municipality or individual furnishing water, is not a guarantor or insurer of such water, but is liable in case the weight of the evidence shows negligence and that such negligence was the cause of the disease:

Green v. Ashland Water Company, 1898, 101 Wis. 258, 77 N. W. 722, 43 L. R. A. 117, 70 Am. S. R. 911.

Hayes v. Torrington Water Company, cited above.

Keever v. Mankato, 1910, 113 Minn. 55, 129 N. W. 158, 33 L. R. A. (N.S.) 339, Ann. Cas. 1912A, 216.

The same principle as the above is illustrated by a New York case in which it was held that the City of Brooklyn, in the absence of any evidence of negligence, was not liable for the death of a person who