« FöregåendeFortsätt »
to increase, and in fact under the testimony has largely increased, what must be denominated a public nuisance. It is interfering not only with the property and personal rights of the persons affected, but in a large degree with the rights of a large community of people by inflicting irreparable injury, which it is the peculiar office of a court of equity to prevent. There are numerous cases in other States of the Union and in England in which municipal corporations have been prevented and restrained from creating and maintaining nuisances through the discharge of sewage into watercourses and rivers, and the rule seems to be well stated that, where an unreasonable pollution of the water, amounting to a nuisance, or impairing the rights of the lower riparian proprietor, is created or maintained, an injunction will issue to restrain its continuance. More than 50 cases are cited in complainants' brief in support of this position.
In High on Injunctions (4th Ed.), § 810, the rule with regard to injunctions against municipalities to restrain them in the creation of nuisances through the discharge of their sewage is well stated. Gould on Waters, 88 545, 546; Joyce on The Law of Nuisances, $$ 284, 285; Attorney General v. City of Paterson, 58 N. J. Eq. 1 (42 Atl. 749); Id., 60 N. J. Eq. 385 (45 Atl. 995, 48 L. R. A. 717, 83 Am. St. Rep. 642), and cases there cited.
In Butler v. Village of White Plains, 59 App. Div. (N. Y.) 30 (69 N. Y. Supp. 193), the village operated a sewage disposal plant, the affluent from which was deposited in a river on which the plaintiff was a lower riparian owner. The discharge at times produced a foul and offensive odor over plaintiff's lands and polluted the water of the stream. It was held that, as the plaintiff had a right to a reasonable use of the river in its natural flow and purity, it was a nuisance, and equity would restrain the same.
In Morgan v. City of Danbury, 67 Conn. 484 (35 Atl. 499), the city of Danbury discharged its sewage into the Still river, which, during the warm season, had scarcely any flow. The water became polluted, and its use to the riparian owner was impaired, the cattle refused to drink it, and at the suit of the lower riparian owners the city was restrained from continuing the nuisance.
In Chapman v. City of Rochester, 110 N. Y. 273 (18 N. E. 88, 1 L. R. A. 296, 6 Am. St. Rep. 366), an injunction was likewise issued to restrain the pollution of the stream by a municipal corporation.
In Peterson v. City of Santa Rosa, 119 Cal. 387 (51 Pac. 557), perpetual injunction was issued in an action by a riparian owner to restrain defendant, a municipal corporation, from polluting the waters of Santa Rosa creek by discharging into it above plaintiff's lands sewage from the city.
The doctrine of prescriptive right does not apply here for two reasons: First, there can be no prescriptive right to create a public nuisance; and, second, there has been a great increase of the discharge of sewage into the river within the 15 years before the bill was filed. 30 Am. & Eng. Enc. Law (2d Ed.), p. 383.
In Goldsmid v. Improvement Com’rs, L. R. 1 Ch. 349, the pollution of a stream by the discharge of sewage from a town therein which was complained of had been going on for over 20 years, and was continuous, and was sought to be maintained on the ground of prescriptive right. It was held, however, that such prescriptive right had not been acquired, because, during the early period, the discharge of the sewage did not prejudicially affect the lower riparian owners on account of the small amount discharged, and became prejudicial only when, from the increase in the size of the town, a greater amount was discharged.
The prescriptive right to pollute the water is limited to the use which has been made of it, and, in case new use is attempted which renders the stream much more foul, the lower proprietor may recover for the injury done him. Moore v. Webb, 1 C. B. (N. S.) 673.
There can be no prescriptive right to pollute a stream by the discharge of sewage in such a manner and to such an extent as to be injurious to public health. Even assuming that a prescriptive right to foul a stream with sewage can be acquired, such must be restricted to the limits of it when the period of prescription commenced; and if the pollution be substantially increased, whether gradually or suddenly, the court will interfere by injunction to prevent the wrongful excess; and, if it be impossible to separate the illegal excess from the legal user, the wrongdoer must bear the consequences of any restrictions necessary to prevent the excess, even if it unavoidably extends to the total prohibition of the user. Blackburne v. Somers, L. R., Ir. 5 Eq. 1.
If a prescriptive right has been acquired to pollute the water to some extent, the one having the right will not be permitted to increase the pollution without being liable to an action. McIntyre v. McGavin (1893), A. C. 268.
No person is entitled on the ground of ancient custom to the privilege to collect a mass of sewage matter and pour it at one point into a stream in such a quantity that the river cannot dilute it on its passage down to the lower riparian proprietors, as the effect of such an act is to create an evil which must be illegal, being such as no custom can authorize. Attorney General v. Richmond, L. R. 2 Eq. 306.
In Attorney General v. Halifax, 39 L. J. Ch. N. S. 129, the court granted an immediate injunction restraining a city from increasing the discharge of sewage into a brook, and an injunction to take effect after the expiration of the year restraining the existing discharge unless the sewage should be purified and de
odorized; it appearing that the nuisance from the discharge was gradually increasing.
In Morse v. City of Worcester, 139 Mass. 389 (2 N. E. 694), the court, in discussing the liability of the city for creating a nuisance by throwing its sewage into the stream, states that it cannot be supposed the legislature in giving the right to use the stream intended to authorize the commission of the nuisance unless it was absolutely necessary, and that it would be liable if it was negligent in the manner of constructing the works or in failing to purify the sewage before it entered the stream. And the same general principle is found in Merrifield v. City of Worcester, 110 Mass. 216 (14 Am. Rep. 592), and in Washburn & Moen Manfg. Co. v. City of Worcester, 116 Mass. 458.
The general rule is that sewage cannot be cast into the stream to such an extent as to pollute it. Sewage cannot be thrown into the stream in such a way as to render the water foul and unfit for use. Goldsmid v. Improvement Com’rs, supra; Bidder v. Board of Health, 6 L. T. N. S. 778; Peterson v. City of Santa Rosa, supra.
A city cannot, without direct legislative authority, pollute a stream with its sewage to the injury of lower proprietors. And it cannot be done by legislative authority without making compensation to the injured riparian owners. Nolan v. City of New Britain, 69 Conn. 668 (38 Atl. 703).
A municipal corporation cannot cast its sewage into a stream in such a manner as to pollute the pond of a lower riparian proprietor which he uses for domestic purposes, the propagation of fish, and the supply of ice. Chapman v. City of Rochester, supra.
The city will be liable for polluting a stream with sewage in such a way as to spoil the water supply of a proprietor lower down. Good v. City of Altoona, 162 Pa. 493 (29 Atl. 741, 42 Am. St. Rep. 840).
A city may be enjoined from emptying sewage into a stream. Village of Dwight v. Hayes, 150 Ill. 273 (37 N. E. 218, 41 Am. St. Rep. 367), affirming Hayes v. Village of Dwight, 49 Ill. App. 530; Robb v. Village of La Grange, 158 Ill. 21 (42 N. E. 77).
In Spokes v. Board of Health, L. R. 1 Eq. 42, the court, in speaking of the discharge of sewage into a river, asked:
“What difference can it possibly make as to the commission of an illegal act, whether a man acts on behalf of thousands or on behalf of himself only ?”
It is urged very earnestly that defendants' right to use the river in the manner it is used in disposing of sewage is superior to the rights of complainants, because of the magnitude of their right and the necessity to dispose of the sewage of the city.
It is a sufficient reply to this argument to say that it long has been the fundamental law of the land that no man is to be deprived of his property without due process of law and without compensation. Stock v. Township of Jefferson, 114 Mich. 357-361 (72 N. W. 132, 38 L. R. A. 355); Beach v. Zinc Co., 54 N. J. Eq. 65 (33 Atl. 286); Town of Shelby v. Power Co., 155 N. C. 196 (71 S. E. 218, 35 L. R. A. [N. S.] 488, Ann. Cas. 1912C, 179, and note); Thompson v. City of Winona, 96 Miss. 591 (51 South. 129, Ann. Cas. 1912B, 449, and note); Markwardt v. City of Guthrie, 18 Okl. 32 (90 Pac. 26, 9 L. R. A. [N. S.] 1150, 11 Am. & Eng. Ann. Cas. 581, and note). See note to O'Donnell v. City of Syracuse, 6 Am. & Eng. Ann. Cas. 177.
In Winchell v. City of Waukesha, 110 Wis. 101 (85 N. W. 668, 84 Am. St. Rep. 902), it was held that the sewer as maintained constituted a nuisance, and that plaintiff was entitled to an injunction restraining defendant from using the stream, unless the sewage was first deodorized, since, in the absence of legislative authority, a city has no greater rights to pollute a