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put into land and thus disposed of, with no nuisance to the surrounding locality; it would be an open question whether sewage of a dilution of 1 to 150, poured upon the land in large quantities, might create an odor; that no one could say without having tried it; the inference is that there would be a nuisance, though that would depend on the length of time the water stood there and the character of the soil; it would be impossible with that dilution and proper local conditions for enough sewage to be left to create an odor.
There was also evidence offered on behalf of complainants that by the construction of a wall at Grandville, at an expense of $30,000 to $50,000, the flooding there could be prevented. The judge of the superior court dismissed the bill upon the merits.
The complainants have appealed, and the case was argued by counsel for the respective parties. Many authorities are cited in the briefs of counsel.
It is the claim of complainants' counsel that from the cases cited by him the following rules may be stated:
(1) A municipal corporation has no greater right to pollute the waters of a river or watercourse, or to create a nuisance therein, than has any individual.
(2) And if such a municipal corporation creates a nuisance through the discharge of its sewage into a watercourse, it may be restrained therefrom.
(3) There can be no prescriptive right to create a public nuisance.
(4) The discharge of sewage for a considerable period in a particular manner may possibly create prescriptive right to continue to discharge it in the same manner as against an individual, but not as against the public, and there is no prescriptive right to increase the discharge or to increase the nuisance resulting therefrom.
(5) The rights of the riparian owners on a stream to the use of the water are property rights, and those rights cannot be restricted, limited, or destroyed by permitting, through statutory enactment or otherwise, a municipal corporation discharging its sewage into the river above them. Such rights can only be affected through the exercise of the right of eminent domain and making full compensation to the owner.
(6) It is not even essential that the present nuisance be such as to create a condition which is intolerable to the persons affected by it. If there is a degree of annoyance to them, and the water is polluted, and its value slightly impaired, or the health conditions slightly affected, and it can be seen that the effect of continuing to discharge the sewage will increase the nuisance, an injunction will issue.
(7) The fact that the health and convenience of one part of the public, or of a particular municipality, will be best subserved by discharging sewage into the stream makes no difference.
It is the claim of defendants that under the evidence in the case the complainants have failed to show that a public nuisance has been created, or exists, for which defendants are responsible. It is their claim: (a) That the sewage is thoroughly disintegrated and has disappeared by the time it reaches Grandville; (b) that the nuisance, if any exists, results from the decaying vegetation upon the ground caused by the area being submerged; (c) that the conditions complained of result from certain privies located in the overflowed area in Grandville; (d) that this condition is increased by the refuse from the gas factory, the glue factory and refuse from certain tanneries located on the river bank, which goes into the river; (e) that the condition results in part from the discharge of sewage into the river by municipalities above the city of Grand Rapids; (f) that the refuse of manufacturing establishments located upon the river, including canning factories, and dead animals in the stream, affect the conditions. We have examined the testimony very thoroughly relating to each of these claims. We cannot, in the nature of things, repeat that testimony.
In our opinion the equities of the case are with the complainants, and the testimony makes out a case of public nuisance. It clearly appears by a preponderance of the evidence that the disintegrated sewage continues in the river until it passes Grandville, and that decomposition of the sewage is not complete by the time it reaches Grandville; that so long as decomposition continues, and until its process is completed, the sewage gives off gases; and that, so long as the sewage continues to give off gases, there are odors.
The complainants' witnesses testified to odors and conditions at Grandville sufficient to create a nuisance. Their testimony is of an affirmative character and is based upon actual knowledge of conditions. It is true that many of defendants' witnesses testified to the absence of odors. That testimony either does not relate to conditions at Grandville or does not relate to conditions at the time when complainants' witnesses testified to conditions amounting to a nuisance, or it is based upon general conclusions, supposedly scientific, that sufficient sewage could not go as far as Grandville to cause the nuisance complained of. The evidence on behalf of defendants relating to the facts is largely of a negative character, and when closely scanned is not inconsistent with the claim of complainants.
An extended discussion of the authorities cited by counsel would render this opinion of an unwarranted length. We shall content ourselves with citing authorities, with some few extracts therefrom.
If the city of Grand Rapids in emptying its sewage into Grand river, as shown by the evidence, creates a nuisance to the public or riparian proprietors below the city, the continuance or creation of that nuisance
may properly be restrained by injunction, and the attorney general is a proper complainant.
In Missouri v. Illinois, 180 U. S. 208 (21 Sup. Ct. 331), a bill to restrain the pollution of the waters of the Mississippi river by emptying into it the sewage of Chicago, through the drainage canal, was demurred to; two of the grounds being that it was not a proper subject for an injunction, and that, as the State was not interested, it was not properly instituted by the attorney general on its behalf. The United States Supreme Court overruled the demurrer and held that the proceeding did affect the public at large, presented a case for equitable inquiry, and stated, among other things:
“The health and comfort of the large communities inhabiting those parts of the State situated on the Mississippi river are not alone concerned, but contagious and typhoidal diseases introduced in the river communities may spread themselves throughout the territory of the State. Moreover, substantial impairment of the health and prosperity of the towns and cities of the State situated on the Mississippi river, including its commercial metropolis, would injuriously affect the entire State.”
The court further said, quoting from Attorney General v. Aqueduct Corporation, 133 Mass. 361:
'The cases are numerous in which it has been held that the attorney general may maintain an information in equity to restrain a corporation, exercising the right of eminent domain under a power delegated to it by the legislature, from any abuse or perversion of the powers, which may create a public nuisance or injuriously affect or endanger the public interests' citing many cases.
Can it be said that the city of Grand Rapids, by reason of its being a city of considerable size on the banks of this river, which must in some way dispose of its sewage, has any right superior to the ordinary riparian owner which will permit it to cast its refuse matter into the river to be thereby carried away to the injury of the riparian owners, and to thereby not only limit the usefulness of the water, but also to create in it a continuing nuisance?
Undoubtedly the city has the right to make a reasonable use of the waters of the river as a riparian owner.
Our attention has not been called to any statute giving the city the right to use Grand river below its limits as a sewer for the purpose of carrying away its waste and refuse in an unreasonable manner; and, if it were attempted by statute to give such a right, the statute would be unconstitutional, unless it first provided that the owners of property along the river should be compensated for damages to be first determined by constitutional methods for destruction of such property rights. The city may be treated as a riparian proprietor, and as such riparian proprietor it has no right to destroy the use of the water to other riparian proprietors, and it may not unreasonably increase the burden to lower riparian proprietors by carrying from a distance, by artificial means, refuse substances which would not be naturally deposited therein, thereby causing the pollution which would destroy the use of the water to the lower riparian owner. If the city creates, or threatens to create, a public nuisance, particularly outside of its corporate limits, it is subject to the same rules as would be a private individual, particularly when in the creating of such nuisance it acts not in a governmental, but in a private, capacity. In principle, we think the questions involved in this case have been covered by our own decisions. Pennoyer v. City of Saginaw, 8 Mich. 534; Ashley v. City of Pt. Huron, 35 Mich. 296 (24 Am. Rep. 552); Seaman v. Marshall, 116 Mich. 327 (74 N. W. 484); Township of Merritt v. Harp, 131 Mich. 174, 177 (91 N. W. 156); Onen v. Herkimer, 172 Mich. 593 (138 N. W. 198).
In this case the city is maintaining and threatening