2 N.W.2d 907 | Mich. | 1942
Lead Opinion
The decree entered below allows the city of Birmingham to deposit raw sewage into a watercourse on plaintiff's lands at certain periods, under certain conditions. I cannot agree that the decree should stand. On the record before us the city should be permanently enjoined from continuing a nuisance. The city, in effect, admits that under certain conditions raw sewage is discharged, through the city sewer, across plaintiff's lands. It claims the right to do so because the sewage is diluted at such times by surface water from excessive rainfall. The city's claim is thus stated in its brief:
"It is the general position of appellees that the city of Birmingham has done all that can be required of it to be done and that if any pollution is cast into the little stream across the Dohany property, that it comes only at times of excessive rainfall and is harmless as to its contents, whether definable as sewage or not. * * *
"That the pumping station will take care of all flowage except possibly during severe rainfalls which is all that can be required of a municipality in the handling of its sewer disposal plant and system."
Mr. Corson, the city engineer, admitted that the pumping capacity was not sufficient to prevent some of the contents of this sewer from going over the *39 six-inch dam constructed by defendants, into the watercourse, and across plaintiff's lands. The extent to which the city claims the right to do this was thus explained by the city engineer:
"Q. Mr. Corson, do you know whether or not the city of Birmingham, one of the defendants in this case, claims the right to discharge sewage through this sewer in question into this open watercourse that carries over on to the Dohany property, whether that sewage be much or little.
"A. It does not claim that right undiluted.
"Q. It does then claim the right to gather sewage and discharge it through this sewer into the open watercourse that leads down on to the Dohany property, if the sewage is diluted to some extent, is that right?
"A. To a considerable extent, yes, sir.
"Q. What is that extent?
"A. Under the present conditions —
"Q. No, just answer, just what is that extent that it has got to be diluted?
"A. About one part of sewage to five of water."
Mr. Dance, the city director of public works, admitted that the pumping station was operated by manual switches; that sewage goes down across plaintiff's lands if the pumps are cut off, and that whenever the six-inch dam was filled the overflow went on down into plaintiff's watercourse. It was also shown that there were 30 inches of accumulated raw sewage or "sludge" at the bottom of the sewer manhole, beyond the capacity of the pumps; that this accumulation was churned up by any unusual flow of surface water and thus carried on down into plaintiff's watercourse. This accumulation is sewage and the solids in this accumulation are human excrement. *40
Plaintiff acquired the lands in question in 1916, at a first cost of $12,000, since which time plaintiff has expended thereon in taxes approximately $7,000. The land is about 21 acres in extent, partly woodland, lies about six miles from the city limits of Detroit, and closely adjacent to other residential districts. It was acquired for residential purposes, and is traversed by a meandering natural watercourse, with a channel and well-defined banks. At times the watercourse is dry. It is the outlet for raw sewage discharged from the sewer in question whenever there is a heavy rainfall. The outlet of the sewer empties into a small pool from which the contents of the sewer pass across plaintiff's land from a short ditch along the highway. No part of plaintiff's land lies within the corporate limits of the city. There was no pollution of this watercourse before the sewer was constructed.
As soon as the sewer was completed it began to deposit raw sewage into the watercourse. Night soil and the usual complement of raw sewage was deposited therein. The stench became terrible and plaintiff started suit in August, 1939, to abate the nuisance. In October, 1939, the city installed and put into operation a six-inch dam and pumping station at the lower end of the upper (42-inch) part of the sewer. The purpose was to divert the contents of the sewer by means of the dam and pumping station through an eight-inch pipe, and, eventually, through a disposal plant. Admittedly, this construction does not take care of all of the raw sewage. After a heavy rainfall the contents of the sewer rise above the six-inch dam and are carried on down across plaintiff's land.
Some six months after the dam and pumping station were put into operation plaintiff obtained samples of the sewage discharged across his land. These samples were taken each week for a period *41 of 12 consecutive weeks during the months of April, May, and June. The 12 samples were analyzed and brought into court as evidence. Three different chemists testified that these samples contained all of the usual elements of sewage, — abundant chlorides, hydrogen sulphide, active bacilli coli, ammonia and insoluble solids. At that time human excrement was still being deposited on plaintiff's land. The stench continued and was such that a nearby resident was, at times, compelled to keep the windows of his house closed.
To sustain its position the city relies upon cases holding that a riparian owner is allowed reasonable use of a natural watercourse in common with other riparian owners, even to the extent of a certain amount of pollution. People v. Hulbert,
Equity has jurisdiction to restrain the pollution of a watercourse by casting sewage therein in quantity sufficient to occasion a nuisance. No public necessity warrants a city in injuring the rights of riparian owners by polluting a stream with its sewers; such rights are protected by the Constitution and cannot be taken away except by due process of law.* AttorneyGeneral, ex rel. Township of Wyoming, *42
v. City of Grand Rapids,
The decree entered below holds that the dam and pumping station, installed by the city since the suit was started, is adequate to take care of the dry weather flowage from the combined storm water and sanitary sewer, and that the city is not required to prevent the surplus flow from finding an outlet, at other times, across plaintiff's property. This is not sufficient. A decree may be entered allowing the city a reasonable length of time to make the necessary improvements and permanently enjoining defendants from thereafter discharging raw sewage into the watercourse on or across plaintiff's land, with costs to plaintiff.
NORTH, STARR, WIEST, BUTZEL, BUSHNELL, and SHARPE, JJ., concurred with BOYLES, J.
Dissenting Opinion
We have most carefully reviewed the evidence as disclosed by the record before us for the purpose of determining whether the findings of fact by the trial judge find support therein, and from said examination we reach the conclusion that said findings of fact are amply supported by the record here. We are also *32 in accord with the conclusions of law reached by the lower court and conclude, therefore, that the decree entered on such findings and conclusions should not be disturbed.
Entertaining these views, we have determined to adopt the findings and conclusions of the trial court as conclusive of the questions involved on this appeal.
The opinion of the trial court follows:
"The plaintiff is the owner of acreage traversed by a small watercourse that lies in close proximity to the city of Birmingham. A portion of the city now partially developed, serviced by a sanitary sewer here complained of, found natural surface water drainage in the watercourse. Plaintiff's complaint of pollution resulted in the defendant city installing a mechanically operated pumping device to divert all the dry weather flowage from the watercourse to a sanitary lateral, finding other source of outlet. The pumping device and source of outlet are insufficient to take care of the content of the combined sanitary and storm water flowage at periods of great precipitation incident to heavy rainfalls. On such occasions the surplus finds outlet in the watercourse.
"The defendant city alleges thereby a condition is not created injurious to public health, a nuisance is not established, there is no resultant damage, and pollution, if any, is insignificant and inconsequential.
"The plaintiff, on the other hand, contends that the pumping device has not on all occasions taken care of the dry weather flowage and in addition the city has no right of pollution at any time and that he is entitled to injunctive relief preventing the discharge of any waters showing evidence of contamination.
"The drain and mechanism installed by the city are in accord with `accepted engineering practices,' *33 capable of a load up to 900 gallons per minute, ample to accommodate the `dry weather flow' for an area containing a population of 2,000 and upwards, far in excess of present necessity.
"The defendant city has a right to make a reasonable use of the stream. This principle is expressed in Attorney General, ex rel.Township of Wyoming, v. City of Grand Rapids,
"The Court, in a case that went to the extreme in condemning a city for the pollution of the waters of a stream, stated that the matter of reasonable use is a question of fact and further it is incumbent upon him who claims an unreasonable use to make it appear. Penn American Plate Glass Co. v. Schwinn,
"The Supreme Court of this State, in Phillips v. Village ofArmada,
"The principle enunciated in Gundy v. Village of Merrill,
"Factually, no damage has been established through the circumstance of the permission of the flow of surplus waters as here outlined, nor has public nuisance been proven. This court is satisfied that the certain circumstances complained of bore relationships to a time prior to the establishment and present workability of the mechanism now used, that the samples obtained by the plaintiff were from a pool where the most unfavorable condition would be reflected and one that would not be free from influences outside of present established devices for the purpose of preventing dry weather flowage from entering the watercourse over plaintiff's lands.
"Defendant certainly is chargeable with a duty less than permanently maintaining a flowage of water in the stream that has the purity essential for drinking purposes. Plaintiff makes no use of the water and therefore has no right of action for disturbance of content from this standpoint. The stream is no more than a ditch, dry most of the time. Defendant city offered evidence that samples analyzed by it presented a state of oxidization taking place affording no injurious circumstances.
"The plaintiff will be denied injunctive relief for the purpose of preventing the surplus flow of water *35 in excess of the dry weather flowage from finding outlet in the stream. The decree may, however, provide that the city shall at all times be required to take care of the dry weather flowage and provide necessary pumping facilities adequate for any increased demand due to an increased population in the area so that the stream crossing plaintiff's land will only be burdened with such excess and surplus flow incident to heavy precipitation through rainfalls.
"The findings in this case cover the present factual situation and are not to be construed to cover should a circumstance develop from causes here unforeseen, that might result in recognized health authorities finding a circumstance amounting to a public nuisance or a condition injurious to public health.
"A decree may enter without costs."
We find that the decree, a portion of which we quote, protects plaintiff from being unduly burdened by any increase in the amount of flowage from the sewer in question due to any increased demand following any increase in the population in the area served by said sewer.
Those portions of the decree, which we deem important here, we quote:
It is the duty of this court, which hears chancery cases denovo, to weigh all the evidence, and to reach a conclusion in accordance with the just rights of the parties after a review of the entire record. Petz v. Gaines,
The findings of fact by the trial court are well supported by competent evidence, and the conclusions of law reached by said court are in accord with the following authorities: Fox v.Holcomb,
The decree should be affirmed with costs.
