Sidor som bilder

navigable stream than a private individual. Todd v. City of York, 3 Neb. (Unof.) 763 (92 N. W. 1040).

In the recent case of Penn American Plate Glass Co. v. Schwinn (Ind.), 98 N. E. 715, the supreme court of Indiana discussed the difference between the diversion or detention of the waters of a stream by an upper riparian proprietor to a reasonable use and the introduction into the stream of foreign substances, rendering its waters unfit for use by lower riparian proprietors, and held that what is a reasonable use is a question of fact. That court also criticised the earlier Indiana cases and the Pennsylvania rule, and said:

“There is, perhaps, one line of distinction which, in the opinion of the writer of this opinion, is unsound, and that is an exception in favor of cities making avail of streams for sewerage without liability. That doctrine grew up from a supposed necessity; but the same reasons which seemed to be grounds for the exception to the rule in regard to pollution of streams by cities are the very ones which must sooner or later reverse it. It is a matter of common knowledge everywhere, and the subject of recent legislation in this State, that the streams of pure and limpid water, which formerly traversed the State, have become cesspools of filth and breeders of disease, and polluted to nausea; and we must certainly, and the sooner the better for the State and its inhabitants, take steps necessary to the removal of sewage from our streams and their restoration to their natural condition."

The doctrine that necessity is no defense to unreasonable pollution of a watercourse is supported by the following cases: Straight v. Hover, 79 Ohio St. 263 (87 N. E. 174, 22 L. R. A. [N. S.] 276); Hunter v. Coal Co., 16 Ky. Law Rep. 190; Beach v. Zinc Co., supra; H. B. Bowling Coal Co. v. Ruffner, 117 Tenn. 180 (100 S. W. 116, 9 L. R. A. [N. S.] 923, 10 Am. & Eng. Ann. Cas. 581); Day v. Coke Co., 60 W. Va. 27 (53 S. E. 776, 10 L. R. A. [N. S.] 167). But it is earn

estly contended by counsel for defendants that these views are opposed to the Michigan rule, and they cite People v. Hulbert, 131 Mich. 156 (91 N. W. 211, 64 L. R. A. 265, 100 Am. St. Rep. 588), and Phillips v. Village of Armada, 155 Mich. 260 (118 N. W. 941).

In People v. Hulbert, supra, it was held that a riparian owner on a lake has a right to bathe therein, as against a city drawing its water supply from the lake under a like ownership; and that the rights of the several riparian proprietors on a stream or an inland lake are equal, each being entitled to a reasonable use of the water, though such use may, to some extent, prejudice the other proprietors by impairing the quality of the water or by diminishing its quantity. The question involved in such a case is one of reasonable use and may be said to be a matter of degree. A careful reading of the case of People v. Hulbert, supra, will disclose that in the authorities cited this court kept prominently in view the question of reasonable use of the water by the upper proprietor. It was said that “any" use of the

“Water which defiles and corrupts it to such a degree as essentially to impair its purity, and prevent the use of it for any of the reasonable and proper purposes to which running water is usually applied,

is an infringement of the right of other owners of land through which a watercourse runs, and creates a nuisance for which those thereby injured are entitled to a remedy.'

It was held, however, that bathing in such water was not an unreasonable use of it. The instant case is so readily distinguished from the Hulbert Case that further comment is unnecessary.

Phillips v. Village of Armada, supra, was an action at law for damages arising from the deposit of sewage in an open ditch adjacent to plaintiff's home, and from the ditch into a stream flowing past his property. There was no evidence from which the jury could de



termine the damage done by the sewer complained of, and other sewers emptying into the same stream, and it was held that the trial court should have eliminated the pollution of the stream from the consideration of the jury, and limited plaintiff's recovery to damages done by the open ditch, and the case was reversed because of this error of the trial court. In the opinion Chief Justice GRANT referred to the case of People v. Hulbert and said:

"It is very doubtful whether the sewage into the creek by the defendant is not, under the decisions, a reasonable use of the stream. The question is one of great importance to cities and villages located upon the rivers, creeks, and lakes of this state. The use of a stream reasonable at one time and one place may become unreasonable at another time and at another place. The reasonable use of a stream must be determined in the light of increased population, of proper sanitary measures, and the general welfare of the communities affected. The sewerage of villages and cities has become an absolute necessity for the public health. It is not enough to condemn a use as unreasonable because such a use may pollute to some extent the waters of the stream below.

We refrain from further discussing this important question. The question is barely referred to in the brief of counsel for the plaintiff, and its decision is not essential to a determination of this case."

As we have already said, the matter of reasonable use is one of fact, and largely one of degree. Here we are dealing with a case on the equity side of the court with the evidence before us, and the question of a reasonable use of the river is involved and is discussed by counsel. We are of opinion that the Phillips Case is not controlling here.

It appears in this case and it is well known that modern scientific research has discovered means of disinfecting and deodorizing sewage so that it is practically innocuous. It also appears that the plan of depositing the night soil into the Prescott street sewer was permitted and entered upon as a temporary measure only. But such course has been pursued for a number of years, and, unless some order is made in this case, it is likely to become a permanent practice on the part of the city. The maxim, "Use your own property in such a manner as not to injure that of another," can equitably be applied to the defendants in this case. It appears undisputed that the construction of a septic tank or tanks by the defendants within a reasonable time is feasible and practicable, and that thereby the sewage would be relieved from contaminating properties and so purified as to take away the offensive, unhealthful, and nauseating odors.

The decree of the court below will be reversed, and one entered here for complainants restraining the defendant city of Grand Rapids, its boards, officials, servants, and agents from continuing to discharge the sewage of the city of Grand Rapids, which is now discharged into the said Grand river, until the same shall have first been, by the use of a septic tank or tanks, so deodorized and purified as not to contain the foul, offensive, or noxious matter (which it now contains) capable of injuring the complainants or their property, or causing a nuisance thereto; such injunction to become operative one year after the date of the settling of decree. The complainants will recover of the defendant the city of Grand Rapids their costs of both courts, to be taxed and duly certified.

STEERE, C. J., and MOORE, MCALVAY, BROOKE, and OSTRANDER, JJ., concurred. Kuhn and BIRD, JJ., did not sit.



1. WILLS — EXECUTION TRIAL — EVIDENCE-STATUTORY REQUIREMENTS-TIME. Where the contestant, in proceedings to probate a will, con

ceded that decedent had signed the instrument in question, claiming that the statutory requirements had not been observed, and that the execution of the will had been procured by fraud, and the attesting witnesses differed as to the time of signing, it was not error to charge the jury that if it was executed about the date named in the instrument the will was valid, that if it was not executed in accordance with the statutory formalities, as stated at length in the charge, the will was not entitled to probate; nor did the court commit reversible error in refusing to permit proponent to answer questions on cross-examination relating to the claims as to date of execution made by the parties in probate court, in which, it was contended by appellant, inconsistent testimony to that given on appeal had been given by proponent, who, on cross-examination, had fully covered the claimed dis

crepancy and his reasons for changing his testimony. 2. SAME-CHARGE TO JURY.

On conflicting evidence of the attesting witnesses to a will

which one subscribing witness testified had been executed in strict conformity with statutory requirements, and the other stated had not been attested in the presence of testatrix, it was proper to instruct the jury that the witnesses must sign in the presence of decedent, but that did not mean in the same room if they were where she could see them, or practically in the same room, that they must be where she could see them sign and that even if the witnesses denied their signatures or had forgotten the facts, if their signatures could be proved, the due exe

cution of the will might be established. 3. SAME-ALTERATIONS—ERASURES.

It is commonly presumed that, if nothing suspicious ap

pears on the face of a deed except that an erasure has been made, the change was made before the writing

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