18 Ind. App. 482 | Ind. Ct. App. | 1897
Appellees brought this action to recover damages for the alleged pollution of a natural water course by the discharge of sewage into said stream by the appellant.
The controlling question in this case is, has a municipal corporation the right to construct sewers, and through them discharge sewage into a natural water course, and thus pollute the water so as to render it unfit for use by those who have a right to use it, and had such right prior to the time of such pollution?
The special verdict shows that in 1865 the appellees became the owners of a certain woolen factory, situated near Whitewater river, a natural water course, and about one mile south of the city of Richmond, and that continuously since that time they have been in the possession of said factory; that the machinery of their factory is propelled by water taken from the river about 330 feet below the south line of the city, at which place appellees have maintained a dam across the river to direct the water into a race about three-fourths of a mile long, that connects with their factory, in which they have a large amount of valuable machinery used in manufacturing merchandise for sale; about the year 1882 or 1883 the city constructed the North E street sewer, which discharges its contents into dhe river about 10,000 feet above appellee’s dam, and discharges about 281,923 gallons of sewage every twenty-four hours; also, in 1882 the North- Sixteenth street sewer, which discharges its contents into the river about 17,000 feet above the dam, consisting of about 79,920 gallons of sewage every twenty-four hours; and in 1883 the Cascade
Appellant’s counsel first discuss the refusal of the court to require appellees to make their complain! more definite and certain, claiming that the complaint does not show whether a recovery is sought for damages to their business from a continuing nuisance, or whether for damages past and prospective for a permanent injury to the freehold.
It appears from the complaint that appellees are the owners of certain real estate bordering on Whitewater river, á natural water course, and located on said real estate is a factory, in which they manufacture woolen yarn; that their factory is situated on the bank of said river, about one mile south of the city of Richmond; that the machinery of their factory is propelled by water taken from said river, by means of a race; that appellees and their grantors have owned the real estate and said water privileges for fifty years; that in manufacturing yarns and other material, they are required to and do use large quantities
It is true, it is specifically alleged that the appellees are injured by reason of the offensive odors, and also because of the polluted water being unfit for the purposes of washing wool and running the factory. But it also appears that the factory would be practically worthless if appellees were deprived of the use of the water in the river. The factory is valuable only by reason of what it can manufacture, and if its output is materially and permanently decreased, the property has suffered accordingly as to its value. Taking the complaint as a whole, we think it seeks to recover damages because of certain alleged acts of appellant, and by reason of which appellees’ property has been rendered less valuable.
The sufficiency of the complaint presents a more difficult question. Is a municipal corporation which has constructed a system of sewers upon the best modern plan for conducting and discharging sewage and drainage, and has discharged the same into a
It is alleged in the first paragraph of answer that the appellant is a city with a population of 20,000 or more; that the ground on which it is built is on a general level, about seventy-five feet above the water in said stream, which flows on and along the northern, western, and southwestern borders thereof, and thence in a southerly direction past the premises of appellees; that the natural drainage of the ground is and always has been towards and into said stream, and owing to the conformation of the sourrounding country it has been and is impossible to have drainage in any other direction, and no drains or sewers for such purpose could or can be made without having their outlet into said stream; that it became necessary to construct sewers in said city, and that the city for more than twenty years had claimed and exercised the right to construct such sewers as were necessary, that said sewers were constructed on the most approved and scientific methods, and has used due and proper care to avoid inconvenience and damage .to individuals or the public, and in maintaining the‘same has made all regulations and taken all precautions to make the use of the same of the greatest utility and least injury; that the quantity of water flowing through said sewers is sufficient in volume to dissolve and disperse all solid and filthy matter conveyed into said sewers; that it is impossible, without enormous and unreasonable expense, to provide any means for
Thé second paragraph of answer is substantially the same as the first, with the additional averments that the injuries complained of were caused by appellees’ dam, and that the same could have been readily prevented by the exercise of reasonable and ordinary care and diligence on the part of appellees, such as it was their duty to use under the circumstances; that appellees, for the purpose of washing wool, negli
The fourth paragraph was the general denial; the fifth paragraph pleaded the six years’ statute of limitation to so much of the complaint as claimed damages for permanent injury to appellees’ property; and the sixth paragraph, that for more than twenty years appellant had claimed and exercised the right to construct sewers and discharge sewage into the river above appellees’ dam and factory, which right appellees knew and never denied or disputed.
A riparian proprietor has no property in the water itself, but only a right to use it as it flows by or through his premises, and if he diverts the stream he must return it to its natural channel when it leaves his estate. Dilling v. Murray, 6 Ind. 324, 63 Am. Dec. 385; Tillotson v. Smith, 32 N. H. 90, 64 Am. Dec. 355; Wheatley v. Chrisman, 24 Pa. St. 298, 64 Am. Dec. 657; Burwell v. Hobson, 12 Grat. 322, 65 Am. Dec. 247; Stein v. Burden, 29 Ala. 127, 65 Am. Dec. 394; Davis v. Getchell, 50 Me. 602, 79 Am. Dec. 636, and note.
The principle is well settled, that in the absence of grant, license, or prescription limiting his rights, a riparian proprietor has the right to have the waters of a natural water course flow along or through his premises as it would naturally flow, without change of quantity or quality. McCalmont v. Whitaker, 3 Rawle 84, 23 Am. Dec. 102; Crooker v. Bragg, 10 Wend. 260, 25 Am. Dec. 555; Buddington v. Bradley, 10 Conn. 213, 26 Am. Dec. 386; Omelvany v. Jaggers, 2 Hill (S. C.) 634, 27 Am. Dec. 417; Evans v. Merriweather, 3 Scam. 492, 38 Am. Dec. 106; Wadsworth v. Tillotson, 15 Conn. 366, 39 Am. Dec. 391; Plumleigh v. Dawson, 1 Gilman 544, 41 Am. Dec. 199; Dumont v.
In the case of City of Valparaiso v. Moffitt, 12 Ind. App. 250, suit was brought against the city for damages by reason of the pollution of a natural water course from sewage discharged therein by a system of sewers constructed by the city. The appellees were the owners of a tract of land through which the water ran, and in times of great rainfall the waters of the stream overflowed its banks and spread over appellees’ land and caused cesspools- of stagnant water, and deposited the filth and noxious matter from said sewers thereon, and that by reason of the noxious odors from the filth and waste matter, appellees’ proj.)erty was rendered unhealthy and depreciated both its rental and market value. The city relied upon an answer that prior to the bringing of the suit the appellees had sued the owner of certain gas works for polluting the stream by means of a sewer, and had compromised and settled the suit by accepting a certain sum in full satisfaction of all damages caused by such sewer. The real controversy in the case was the sufficiency of the city’s answer, but the case holds that a municipal corporation is liable in a civil action for erecting and maintaining a nuisance the same as a natural person.
The record in the case at bar shows that other agencies contributed to the pollution of the water, but that fact -does not excuse the act of appellant, if wrongful. It is always competent to show that some other person or persons may have contributed to the wrong, not for the purpose of defeating the action, but in mitigation of damages. The commission of a wrongful act is not excused by the fact that others have contributed to it.
The right to pollute the water of a stream may be acquired by adverse use for twenty years, but this would not be true if the pollution of the stream was such that it would be injurious to the public health, and the rule is subject to the further limitiaton that if the pollution is substantially increased, the prescriptive right is lost, as the- use must continue and be the same as it was when the period of prescription commenced. It must appear that the injury results from artificial causes, and that there has been an actual increase of the pollution.
Appellant’s counsel cite the case of Pennsylvania Coal Co. v. Sanderson, 113 Pa. St. 126, 57 Am. Rep. 445, 6 Atl. 453. That case was before the supreme court of Pennsylvania four different times. Upon the first three appeals it was decided that the plaintiff showed a right of recovery. Sanderson v. Pennsylvania Coal Co., 86 Pa. St. 401; Pennsylvania Coal Co. v. Sanderson, 94 Pa. St. 302; Sanderson v. Pennsylvania Coal Co., 102 Pa. St. 370. Upon the last appeal a contrary conclusion was reached. The action was brought by Sanderson against the coal company for polluting a natural water course by discharging therein the water from its mine. That case does not decide that a manufacturing company whose location cannot be changed
The distinction between that case and the case at bar is apparent. The mining company threw into the stream water which was naturally impure; in the case at bar the city has thrown into the stream water which the city has made impure. In the one case the water flowed in its natural state, while in the other, artificial means had changed the very nature and character of the water.
It has long been the settled law of this State, that for consequential injuries resulting from the construction, maintenance or operation of sewers, streets, and other public works, in the absence of negligence or want of due care and skill, a municipal corporation is not liable. Macy v. City of Indianapolis, 17 Ind. 267; Weis v. City of Madison, 75 Ind. 241; Rice v. City of Evansville, 108 Ind. 7; City of Terre Haute v. Hudnut, 112 Ind. 542; Cummins v. City of Seymour, 79 Ind. 491; City of Evansville v. Decker, 84 Ind. 325.
“The improvement of streets and alleys by a municipality is a lawful act, and if unavoidable injury ensue
Counsel for appellant cite the case of Barnard v. Sherley, 135 Ind. 547, and upon the authority of that case ask a reversal of the case at bar. In Barnard v. Sherley, supra, appellee sued appellants for polluting a natural stream of water by discharging therein water from certain bath houses used in connection with an artesian well, the waters from which were claimed to possess curative properties for certain diseases. The complaint asked injunctive relief, and also damages. The question presented for decision in that case was, as stated in the opinion, “Whether one who sinks an artesian well upon his own land, and uses the water to bathe the patients in a sanitarium or hospital erected by him on said premises, is liable to injunction and damages for allowing the water to flow into a stream which is the natural water course of the basin in which the artesian well is situated, the owner being free from negligence or malice and using all due care in avoiding injury to his neighbor.” The learned judge who wrote the opinion in that case says: “No principle of law is better settled than that a man has the right to the lawful use and enjoyment of his own property, and that if, in the enjoyment of such right, without negligence or malice, an inconvenience or loss occurs to his neighbor, it is a wrong for which there is no liability. * * * * No man is answerable in damages for the reasonable exercise of a right,
That case was decided upon the sufficiency of the second paragraph of answer, which alleged that the well was dug, and its waters caused to flow upon appellant’s lands by an association of citizens with the assent and approval of appellee; that the waters from the well flowed into a stream which, after running through the city, passed over lands of appellee, and for more than a year so continued to flow with the acquiescence of appellee; that the only means or way of escape of the water from said well is in and along said branch, which is the only natural outlet for the same, and that the increase of the flow of water in the stream was not materially increased by the water from said well; that by analysis it was discovered that the waters were of great medical value, and possessed of curative properties in the healing of persons afflicted with various diseases; that thereupon for the purpose of utilizing said waters for the cure of persons so sick and afflicted, appellants erected upon their said lot a bath house, at a great cost, in which they have, since continued to treat those afflicted, using said waters. - This paragraph of answer was held sufficient, for the reason that it appeared due care had been exercised in the premises; that the business in which appellants were engaged was a lawful one, and that it was conducted in a lawful manner. In the opinion in that case the court said: “The natural right to have the water of a stream descend in its pure state, must yield to the equal right of those above. Their use of the stream for mill purposes, and the other manifold purposes fbr which they may lawfully use it, will tend to render it more or less impure. The
The doctrine laid down in Barnard v. Sherley, supra, has been approved by the Supreme Court upon a second appeal of that case. Barnard v. Shirley (Ind. Sup.), 47 N. E. 671.
It is argued by appellees’ counsel that if it be true that appellees had property in their plant, described in their complaint, then when the city discharged sew
The case at bar must be distinguished from that class of cases where an action will lie for maintaining a pest house, or slaughter house, or powder magazines and the like. In such cases the nature and necessities of the business are not such as prevent their removal.
In the case at bar, the building of the sewers was
The principle underlying the decision in Barnard v. Sherley and which is controlling in the case at fear is, that “Where a work is lawful in itself, and cannot be carried on elsewhere than where nature located it, or where public necessity requires it to be, then those liable to receive injury from it have a right only to demand that it shall be conducted with all due care, so as to give as little annoyance as may be reasonably expected; and any injury that may result, notwithstanding such care in the management of the work, must be borne without compensation. It is then a case in which the interests and convenience of the individual .must give way to the general good.” Barnard v. Sherley, 135 Ind. 565; Morse v. City of Worcester, 139 Mass. 389, 2 N. E. 694; Washburn, etc., Mfg. Co. v. City of Worcester, 116 Mass. 458; Merrifield v. City of Worcester, 110 Mass. 216.
As there is nothing in the pleadings or the evidence or special verdict in this case which shows that the appellant failed to construct the sewers with due care or skill, or that the sewers were negligently operated and maintained, or that there was any malice on the city’s part in constructing or operating the same, upon the authority of Barnard v. Sherley, supra, the judgment must be reversed.
Judgment reversed, with instructions to sustain appellant’s motion for judgment on the special verdict.
Comstock, J., took no part in this decision.