970
FEDERAL REPORTER,
vol. 53.
have the right to (IDfQrcehis lien by attachment, merged into the judgment, by sale of the realty free and clear from the incumbrance attempted to be created by the conveyance to the Farmers' Land & LoaJ;l Company, and it will. be the duty of the state court to and,protect his rights in this particular. If Bucki floes not appear in the equity proceedings pending in the state court, still that court, having possession of the realty, has the right to deal with the property, and can, so far as it is concerned, determine the vaJidity of. aJl elaims or liens belonging to the persons made parties to that suit, whether served perSQnally 01' constructively. It thus that when the foreclosure bill was filed in the court bel9W the realty included in the mortgage was: in the custody of its rightful of the state court, and that court, in the due the question of the validity of jurisdiction,. was proceeding to the conveYanoofrom Meyer to the Farmers' Land & Loan Company, including the mortgage thereby created. What steps should be taken and . what process should Qe. issued in connection with the proceedings before it is prlmarllyfor that court to determine, and we fail t06nd in the reCQrd before us any ground upon which to base the right to i!3Sue the writ of inju:o.ction which was in fact granted It is not made to appear that the circuit court by the court has now, or. at present can obtain, jurisdicti&n to proceed with the foreclosurefilUlt. as the property, which is the subject-matter of the proceeding, is without the jurisdiction of the federal court. Under these circumstances, the right to decree a foreclosure of the mortgage and a sale of the realty therein described is in abeyance, and cannot be made effectual against property which is not subject to the jurisdiction of the court. The federal court is not, therefore, of a.ny control or jurisdiction over the realty described in the mortgag-e which authorizes it to enjoin the litigants in the state court from applying to that court for such relief as that court may deem is equitable and necessary. It follows that the o'l'der appealed from, granting the writ of injunction in question, must be and is reversed, at cost of appellee. INDIANAPOLIS WATER CO. v. AMERICAN STRAWBOARD CO. (C4'cuit Court, D. Indiana. February 6, 1893.)
No. 8,719. 1. NUISANCE-POLLUTION OF STUEAM-!NJUNCTJON.
, The discllarge of refuse matter from a strawboard factory into a non· navigable river, used by a water company owning land fronting on and extending along said river, as a source of supply for furnishing a city, its inhabitants, and others with water for domestic,. manufacturing, and other purposes requiring purity of the supply, thereby fouling and polluting such str'*lID, is necessarily a cj)ntlnuing nuIsance, for which no plain, 11-dequate, and complete remedy exists at law, and injunction will lie to restrain such discharge. A water company engaged lnsupplylng a city with water, and owning land bordering on a nonnavigable river, from which a portion of its supply
2.
SAME-RIPARIAN RIGHTS.
INDIANAPOLIS WATER CO. V. AMERICAN STRAWBOARD CO.
971
Is derived, and which, for ,a considerable Q!stance, touches the flow of the stream. i!l,a "riparian proprietor," In the full senseot the word, and as such may. perpetually. enjoin the deposit In the stream of substances which pollute the water to such a degree as essentially to impair its natural ,purity. 8. SAME-EQUITY JURISDICTION-REMEDY AT LAW.
In such a case plaintiff has not a plain, adequate, and complete remedy at law, so as to oust the circuit court of jurisdiction, by reason of Rev. St. § 723, providing that suits in equity shall not be sustained in the United States courts In cases where such a remedy may be bad at law.
4.
BAME-STATE STATUTES.
The federal courts will enforce, either at law or In equity, according to their nature, any new rights created by state statutes, but their equitable jurisdiction of equitable rights cannot be affected by state statutes making such rights enforceable at law. Rev. St. Ind. §§ 289-291,defining a ''nuisance,'' and providing that it may be enjoined or abated, and damages recovered therefor, by any person whose property Is injuriously affected, are merely declaratory of the preexiSting law, and do not affect the right to proceed in equity In proper
5.
SAME.
cases.
In Bill by the Indianapolis Water Company against the American Strawboard Company for an injunction. Heard on demurrer to original and supplemental bills. Overruled. Statement by BAKER, District This bill seeks an injunction to restrain the defendant from polluting the waters of White river. It charges that the complainant is a corporation organized and existing under the laws of the state of Indiana, and the defendant a corporation organized and existing under the laws of the state of Illinois; that the company to whose property and rights the complainant has succeeded was incorporated in 1869, and that it then erected in the city of Indianapolis its plant, and began to supply said city and the inhabitants thereof with water for domestic use, for the extinguishment of fires, for use in manufacturing establishments, and other placeEi of business, and for motive power, and for divers other uses, and so continued to do until complainant was organized in 1881; that in 1839-1840 the state of Indiana acquired in fee simple a strip of land 70 feet wide, extending from White river at the town of Broad Ripple, southwest to a point beyond Indianapolis, and thereon constructed the "Indiana Central Canal," and at the same time constructed across the river, at a point below and north of. Broad Ripple, a dam to flow water from the river through the canal; that the canal was completed in 1840 to Market street, in Indianapolis, and an arm thereof for water power, from a point just north of Market street, running west lind south to a point below Washington street, was also completed at the same time; that the dam, canal, and arm hlllVe thence till now been continuously used to flow water from the river at Broad Ripple through Indianapolis, the dam supplying the water head; that the old water company, in 1870, acquired all the right, title, and interest formerly owned by the state in the dam, canal, arm, lind waters therein, and the lands upon which they were constructed, and in the water power and mill sites; that for 50 years continuously the successive owners of the canal, etc., have used the water therein for hydraulic power, for supplying water to steam boilers, and other purposes, including the making of ice upon said canal, and supplying water to adjacent ice ponds for making ice for domestic and other uses in and about the city; that for 30 year's last past, continuously, said owners have sold to dealerS in ice the privilege of taking the ice growing on the canal, and have sold the right to draw water,from the canal to fill the ice ponds; that the ice produces large gains to complainant, viz. $4,000 a year, and complainant is, by contracts made many years ago, and having many years to run, bound to 1100<1 said ponds for ice making during the ice season; that, up to the time
972
J'EDlllRAL REPORTER, vol.
53.
of't)le wrongtUl acts of the defendant oomplained.of, the water In White river, lOld thewl(U!1.' tlhereof whIoh up to that time had so flowed through said canal, waSJ ()f'sttffi.cient purity for the making of ice suitable for domestic use, and f0r all other ·uses to which iee is put; that"in 1882 complainant acquired the fee-simple title to the land bordering upon White river on the' east side from Fall creek, north one mUe to the La Fayette· bridge, and there constructed in said land, in the water-bearing gravel underlying the same, an open filtering gallery or well, 50 feet wide, 25 feet deep, and 1,000 feet long, 14 feet of its depth being below low water, for the purpose of securing pure. water for the city and itslnbabitants for family and. all other· proper uses; and connected the same with its worlcs; that in 1890, and before the defendant's works were erected, the complainant erected and equipped an auxiliary pumping station at the gallery,· of a daily capacity of 12,000,000 gallons of water, and connected it with the city mains; that the gallery. has since 1882 been the· source of complainant's water supply, and the river front, gallery, new station, and connections cost complainant over $240,000; that in 1882 the gallery was connllcted at its)lorthern end to White rive,r"by;mel;lIlS of filters, so that, when the water collecting in the gallery was insutlicie,nt in quantity to meetthe requirements of said city and its.inhabitants,. the same couId be supplemented by such quantity of. water flowing into said gallery from White river, through said filters, as might be required; that during said time when water has been low and scarce in said gravel bed surrounding said gallery, which occurs at tlInes when been dry. weather for some time, and when the White river is low, complainant has, as occasion required" so supplemented the water collecting in said gallery, and so continues to do at this time; that complainant owns in fee the land bordering on White river covered by the canal where it heads in theriverl.also it owns in fee the river front where the gallery is located, extending one mile. It also owns in like manner other lands bounded by White river, and haVing frontages on said river for the distances hereinafter shown, all situate in Marion county, Ind., up White river froin Indianapolis, and down the rifVer from Noblesville. The bill then describes land fronting on the river at and near Broad Ripple, the frontage shown being over one mile and a half, and all of it except 300 feet being shown to be above the dam; that in order to prevent the deposit thereon of polluting substances, and to preserve the purity of the water flowinginto said filtering gallery from the body of water contained in the gravel surrounding said gallery, the complainant has, since the gallery was so constructed, In addition to the other lands hereinbefore mentioned, acquired in fee simple, by purchase, ·lands lying adjacent to the gallery, aggregating 90 acres, at a cost of $27,000; that the complaInant's plant, including the canal, etc., exclusive of operating expenses and repairs,has cost it and its predecessors about $2,000,000; that White river, from Noblesville to Indianapolis, is nonnavigable, and complainant is the only person or company furnishing water to the city and its inhabitants; that late in 1890, without complainant's consent, defendant erected at Noblesville, near the bank of White river, a strawboard factory, and in March, 1891, began to operate it in making strawboard, and has continued to do so ever since; that it discharges from its works Into the river 3,000,000 gallons of water each day, which has been used in reducing straw to pulp, and that said water passes down the river, through the canal in part, and, when the stage of water 'permits, in part over the dam, down the river, alongside of the gallery, over the filters; that defendant uses dally In its process at this factory 80 tons of straw, 27 tons of lime, and 5 gallons of muriatic acid, all of which is worked upon by the water so thrown into the river, and the water as it enters the river is heaVily charged with the refuse of all of said materials; that 107 tons of sOlid matter are thrown into Said water each day, and only about 40 tons are taken out, and the remaining 67 tons daily pass into the river; that it is, as it reaches the river, of a dirty brown color, and glutinous in consistency, and has the effect, and has had ever since said works were so started, to· render the water of that stream at all points below on White river from Noblesville, to Ii point somewhere below the city of Ind18.napoUs,which was, before the starting of said works, clear and pure for drinking .and other like purposes, brown in color, ouoroU8 to the
INDIANAPOLIS WATER CO. V. AMERICAN STRAW BOARD CO.
973
smell, and impure and unwholesome for drinking and other like purposes; that prior to the starting of the works the river, between the points named, was well stocked with fish, was acceptable for drinking to domestic animals, but since the starting of the works, by reason of thedowing of the water and other matter therefrom into the river, the fish bet;ween said points have died, or abandoned that part of the river, and cattle, after tasting it, refuse to drink it, or, if they do drink it, it renders their mouths sore; that the water in the canal is now also amber brown in color, stained with said offal from said mill, and from being of the' same degree of purity of the water formerly in the river it has, by reason of said offal, been rendered impure; that, before the strawboard works were .rtarted, competent chemists had made repeated analyses of the river water over the gallery and filters, and each analysis showed the water as it flowed in said river to be pwe and good for domestic purposes in drinking; that other analyses have been made by the city chemist and by other chemists under the city's employ since the works were started; and they declared that the result showed the water to be less 'pure than it was before the works were started, and that the impurities were organic and solids held in suspension in the water; that complainant does not know, except as informed, whether the water at that point has been affected to a degree dangerous to health or not, but charges that, if said pollution is allowed to continue, the bed and banks of the river will soon become so befouled with said refuse that the water passing said gallery and, through the filters will become unfit, from the presence of said polluting SUbstances, for domestic use, and unfit for admission into said gallery; that repeated chemical analyses by the state board of he:mh of the water fiowing in the cai:lal, and in the river, from points at intervals beginning at the head of the canal at Broad Ripple and extending up the river to defendant's works, shoW' that the water now is, and for the last eight months has been, polluted by the presence of tlle said solid' matter so thrown into said river by defendrilt's said works; that in the spritig of 1891 complainant notified defendimt that the refuse' and offal from its factory were polluting White river to complainant's damage; that the fish commissioner notified defendant that the fiowipg by it of the polluting substances into the river was harmful to the fish therein, and it must cease; that defendant promised that it would cease to flow said substances into the river, and would put in devices that would remove the same from the water; that complainant depended upon the promise until in the summer of 1891, when, seeing that it was not being performed, it complained of the fouling to the state board of health, and it again notified defendant; that consequently, in September, 1891, defendant asked complainant to !,pfrain from any judicial proceedings for three weeks, by the end of which time it would put in such devices as would remove the pollutillg sub· Slallces from the water flowing from its works into the river, and would in that time build a system of settling basins and dams to be constructed in the gravel subsoil underlying defendant's land at its works, so that all of the water from the works would pass in succession into these basins and over the dams; that the promise was not kept, but. a cheap makeshift was substituted; that complainant wrote defendant October 17, 1891, that it was still polluting the river, and threatened suit; that defendant wrote in reply to defer any action until it could meet representatives of filter companies; that complainant has been greatly damaged by said unlawful acts of defendant, and it will in the immediate future and thenceforward be more seriously damaged in its business of furnishing water and water power in said city if defendant is permitted to continue, and the acts of pollution are still going on, and defendant will continue them unless restrained. The supplemental bill charges that a stipulation of record was fully compIled with by complainant, and that the devices put in by defenliant have removed no appreciable part of the polluting snbstances from the water rtowing from the factory into the river; that the water from tlle factory, charged with the offal therein of the character, composition,and consistency mentioned in the original bill, again began to flow into the :dver after the devices· werefuUy completed:, and the character of the water and its effect on the river rl.,'mained the same as when the original bill was filed. The defendant haa interposed a demurrer to the original and supplemental bills. < ·
REPORTER I
v.o1.53., i
.
;i,41,rQ" , ;ifn 1)),'1 >
.<:.'
,j; :':}
·{Qrr complaiIlant. and Jump, Lamb & DavL3, for defendant. , ,', ,. :',
Jj)istrictl-ndge. It is earnestly conrended by counsel does not.show such ownership of the ll}n<J:8. . as. ..the plaintiff to riparian ngJ;l'ts .lU; the i fl/)jW of, t);J.e.streaJP,. It has been well saId that the rights. of 81i,riparlanpropl'ietor, so faa- as they relate any natural because"his land has by nature the :()t being' walfued by thlf stream; and, as the facts of natUJ;'6 the ,of the., right, the :law should reeognizef:tllQ,. follow the. ;epu,rse of in every part of the same 'stream. The: ownership'of the bed of the river is not the foundati0ll., '.9f . "rip,arit\.D. properly 50 called, because the word t;'Q Ul,e and, not t.o the bed, of the and wh.enlt exISts, of property on the banks WIth the stream, depends, not. upon nature, but upon grant'()rprescription. Lyon v.Fishmongers' Co., L. R.l App. Cas. 662; IJ.I\;'1:QCh.679. ,It is necessary for the existence of a riparian right thnt ,the land sb,QWd be in contact with the flow of the stream. All·riparian ,fights depend upon the\)wnership of land which is coIltiguOl1S ,to, and tOl!1ches upon > the water. Jones v. Johnston, 18 HpW'; v.Jones, 1 Black, 209; BateS v. Railroad 'qO., ]:d.', 'i\ mere right of way along the bank, reserved in a gI'IlJit,o:f a. river, .beillg a mere easement, would his rights as a riparian proprietor. The grant of bmdaJong the banks, which is contiguous to and touches the flow of the stream; ca.rries with it the ownership of the bed Qf anonnav!,g;tble, river usque ad filum.. The bill shows that. the plaintiffi is the :owner in fee of lands which, for a considerable dL3tance, ,al'econtiguous to and touch the flow of the stream. It directly avers that itbrthe owner in fee of a portion of the bed of the s'treal1l' as well af;'l' of the bank. It is, in the fullest sense, a "J;iparlan proprietor,"alld entitled as such to all the rights of such proprietor in wauU'!,of White river. A riparian proprietor, upon a nonnavigable stream is entitled, in the absence of grant] license, or :prescription.limiti!Ig. his rights, his lands flow as' It IS wont by to lutve the stream ,natUre to flow, without diminution or alteration. "Aqua currit et debet currere ut currere aolebat." Every riparian proprietor has the light to ineL3t that the s1:a'eam shall flow to his lands in tb.e u,sual. quantity and quality, ,and at its natural place and height. 1If;owes the duty of permitting it 1;<> flow off his land to the lowel' rip;u-ian proprietor in its accustomed quantity, quality, place, and level. The proprietor has no. property in the flowing water, which ..n.ot,. .. t ripa"rian. ,but use it for any 'pl1)'.'pOSe to which It ciW 'be benefiCIally applied, WIthout material inj1;U'y to fights of others. Ally. diversion or obstruction of ,the, waterwhiClh substantially diminishes its volume, or the depositing of any substances in the stream which corrupt or pollute the wliter to' a degree to· impair its purity, and . prevent its use .fol' any reasona1>1e and proper purpose to which cl.
to
i
INDIANAPOLIS WATER CO. 17. AMERICAN STRA WBOARD CO.
975
running water is usually applied, is an infringement of the right of other owners of land through which the stream flows. An action for damages may be m.aintained by a. riparian proprietor· for the pollution of a stream. So a perpetual injunction will be granted to restrain such pollution, especially if it is of a continuous nature, even when the plaintiff could only recover nominal damages at law, because of the inconvenience of repeated actions, and the danger of the acquisition of an adverse right to pollute it by its continuance for 20 years. So, also, a perpetual injunction will be granted to restrain the pollution of a stream where the nature of the injury is such as to render it difficult or impracticable to adequately measure the damages, andfnlly compensate for the wrong. Gould, Waters, (2d Ed.) § 223, and cases cited in note 1; Merrifield v. Lombard, 13 Allen, 16; Lyon v.' McLaughlin, 32 Vt. 423; Holsman v. Spring Bleaching Co., 14 N. J. Eq. 335; High, Inj. (3d Ed;) §§ 749-·795. The contention that the bill does not charge such tortious injury as entitles the plaintiff to relief is unfounded. The injury alleged is not contingent, remote, or speculative. It is distinctlfcharged that the defendant daily passes through its factory 3,000,000 gallons of water, and uses 80 tons of straw, 27 tons of lime, and five gallons of muriatic acid, all of which are worked upon by the water passing through the factory which is discharged into the l'iver; that 107 tons of solid matter are thrown into said water each daY,and only about 40 tons are taken out, and the remaining 67 tons daily paSs into the river; that the water passing through the factory, as it reaches the river, is of a dirty brown in color, and glutinous in consistency, and has the effect, alid has had ever since the works were started; to render the water of the stream at all points below on White river from Noblesville, to a point somewhere below the city of Indianapolis, which was, before the starting of said works, clear and pure for drinking and other like purposes, brown in color, offensive to the smell, and impure and unwholesome for drinking and like purposes; that prior to the starting of the works the river was well stocked with fish, and acceptable for drinking to domestic animals, but since the starting of said works, by reason of the flowing of the water and other matter therefrom into the river, the fish between said points have died, or abandoned that part of the river, and cattle, after tasting it, refuse to drink it, or, if they do drink it, it renders their mouths sore; that the wa,ter in the canal is now also amber brown in color, stained with said offal from said mm, and from being of the same degree of purity of the water formerly in the river it has, by reason of said offal, been rendered impure. These facts clearly show actionable injury to plaintiff's riparian rights. The bill also shows that the plaintiff has been and is suffering, and will continue to suffer, material pecuniary injury from this infringement· of its rights. The extent of its pecuniary injury from the nature of it, and from the extent and charactAi'r of the uses to which plaintiff devotes the water, is incapable of any certain admeasurement; but if the plaintiff had neglected to use or appropriate
976
as suffered'but small pecuniary loss, it would llOt,p.resentany such 'iimpedimEjllt ,as would walTant a court of equity in refusing Nor could the fact that the defendant ditficwty and expense to restore the water would be,expilllOO to to its accustomed purity present such objections as would j"stify the court ,in denying equitable relief. High, Inj. (3d Ed.) 795, and cases there cited. ,OourtB will not interpose by injunction to prevent a evenWI¥ orcoAtingent nuisance, nor will1ihey interpose when the ipjury is remote O[':contingent, and rests merely in speculation. A very, strong, case must be made:Qy the bill justify the court ,relief; and, if. there is reasonable doubt of the ; the alleged nuisance, 01;1, the ,con.struction of the facts allege(jLin.:the: ,bill, there will be no interference until the matter 1)y ac,tual exwrience. ,,'l'hese principies, however, do not rule ·the facts ,exhibited, in the bill. ,'The bill shows the wrongful corruption of pure and wholesome water, so that it has become offew,!ive to/'ligp.tandsmell,and deleterious inuee for ordinary Itqlearly diElclo,ses ,l;ln actionable wrong. ., claimed by defendant that the court ca,nnot take juris{li:ction oftbis, ,biU; Pecause th¢pll:l,.intiff has a plain adequate ,anl1 spmPJete r/mledy law ,for-the injuries complain,ed of. Secti,Qn 123,;]W,v. St. U. ,S.,,;l87S, "suits in equityshalLnot ,be in, !:Mher of, the courts of the United States in any case adequate" lind complete remedy may be had at law." thifJ suit was pending in a state court in In,diana, bl'l ,;no doubt that a court of equity would not :l:\a.ve juris<Ucti,o:jl to: interfere by injunction" because the legislature of,tp.estate has ,provided a plain,adequate, and complete remedy ltJld it is ina,smv,ch as this suit would be triable aUaw ll,l a ,state court,! it must. be tried at Ill,w in this court. It is true, if or statute 13iw of a state has created a new right, the federal courts will enforce the same at law or in equity, if ,it falls ,within remedies authorized by either bra,nch o( their jurisdiction. Gaines Fuentes, 92 U. S. 10; Ellis v. 'DaYis, 3 Sup. Ct. Rep. 327; Scott v. Neely, 140 U. S. 166, 11 Sup. Ot. Rep. 712. Such new rights, will be en· 13iW or in equity, as the nature of rights may re;quire. The state cannot bind the federal ,by limiting. the remedy so aa to impair the separation established by the constitubetween actions fo!.' legal demands and suits for equitable reli,ef. Scott v. Neely, supra. . But, independently of this consideration, the statute of the state does not affect the question of jurisdiction of such a cause of acaa is exhibited in the bill, whether brought in a court of the jsta1ieor in. .tms court. The. sections of ,the statute of the state cited and relied on are 290, and 291. These sections are as follows: ". ' injurious to the or indecent, or .offensive to the seIl8eS, or lib >()bstruction to the free use of property, SOlIS essentially to in· terfere wIth the comfortable enjoyment of life or property, is a nuisance, and the subject· action. 290. Such action may be brought by any person is injUI1oWllyaffected, or whose personal enjoyment is less·
SMITH V. WORTHINGTON.
977 may
pned by the nuisance. 291. Where a proper case is made, the be enjoined or abated, and damages recovered therefor."
sections create no new rights, nor do they prescribe any new remedy. The first two sections simply codify the law of nuisance as immemorially adjudged by the courts and stated in text-books. The remedy by injunction or abatement was known and practiced by the courts of this state long before the Code of 1852 was enacted. It simply recognizes the jurisdiction of courts of equity to enjoin a nuisance, or, after a judh'lllent at law, to order it to be abated. While aU legal and equitable rights were by the Code required to be enforced by a "civil action," and while such action, whatever itB nature, was triable by jury as an action at law, such practice never obtained in this court, and since 1881 it has not obtained in the courts of this state. Rev. St Ind. 1881, § 409. Since the enactment of the last-cited statute, issues of law and of fact in suits of equitable cognizance have been triable by the court without the aid of a jury. The question whether a suit shall be tried by the court sitting as a chancellor is now to be determined, both in the courts of the state and in this court, by the inquiry, has the plaintiff a plain, adequate, and complete remedy at law for the redress of the grievance£! alleged in his complaint? Suits in equity can only be brought when the court can give more complete and effectual relief in kind or degree on the equity side than on the common-law side. Where the right of a riparian proprietor to the use and enjoyment of the flow of a stream of pure and wholesome water, free from corruption and pollution, has been actually invaded, and such invasion is necessarily to be continuing, and to operate prospectively and indefinitely, and the extent of the injUriOUR consequences is contingent and of doubtful pecuniary estimation, the writ of injunction is not only permissible, but it affords the only adequate and complete remedy. High, Inj., supra; Lyon v. McLaughlin, 32 Vt. 423; Merrifield v. Lombard, 13 Allen, 16. The bill shows a clear invasion of the plaintiff's rights, and that the invasion is necessarily to be continuing, and to operate prospectively and indefinitely, and that the extent of the injurious consequences is conting-ent, and impossible of accurate pecuniary estimation. An action at law would afford no plain, adequate, and complete remedy for the injuries complained of. The demurrer must be overruled, and it is so ordered. SMITH et al. v. WORTHINGTON et at (Circuit Court of Appeals, Eighth Circuit. January 27, 1893.) No. 91.
1.
EXECUTORS AND ADMINISTRATORS-PROBATE PRACTICE-ORDERS-EQUITABLE RELIEF.
Under the provisions of the Arkansas statutes regulating the administration of estates, where a meeting of the heirs of the deceased intestate is held, representatives of four fifths of the interests in the estate being present, and it is agreed that certain persons shall be appointed adml.nif$trators, one of wholL is to reside OD and manage the realty, neither
v.53F.no.l0-62