Durham v. Cotton Mills.

Walker, J.,

after stating the case: This is an application for an injunction to restrain the defendant from polluting the Eno River, which, it appears, is in part the source of supply to the city of Durham of water for drinking and other purposes requiring it to be ke}5t free from impurities. The plaintiffs, although they have stated but one cause of action, base their right to relief upon two grounds: 1. That as the water supply of Durham is obtained partly from the Eno River at a place on that stream where the water company’s plant is located, it has the rights in the water of the river of a riparian proprietor. 2. That if this is not 'so, it has the right to have the defendant enjoined from polluting the waters of the river under the recent act of the General Assembly (Revisal, section 3051), which reads as follows: “No person or municipality shall flow or discharge sewage into any drain, brook, creek or river from which a publiс drinking water supply is taken, unless the same shall have been passed through some well known system of sewage purification approved by the State Board of Health; and the continual flow and discharge of such sewage may be enjoined upon application of any person.” This enactment in connection with the fact alleged that the city of Durham actually draws its water supply at a certain season of the year from the Eno River is claimed to confer upon it the right to enjoin any act of the defendant in violation of the statute which tends to contaminate the water of the river at the outlet of its sewer near Hillsboro, where its cotton factory is situated. We "will consider these questions in their order.

It is well settled by the authorities that at common law a riparian owner has the right to have the natural stream of water flow by or through his land in its ordinary, natural state, both аs to its quantity and quality, as incident to the ownership of the land by or through which the water course runs, and that right continues, unless it has been lost or in some degree abridged by adverse user or by grant. This, it must be understood, is not an absolute and unlimited right, but the principle as thus stated should be qualified so as not to interfere with the equal rights of other upper and lower proprietors on the same stream. The riparian right, therefore, expressed with greater accuracy, is to have the stream to flow by or through the land in its ordinary purity and quantity, without any unnecessary or unreasonable dimunition or pollution of the stream by the owners above. The several proprietors along the course of the stream have no property in the flowing water itself, which is indivisible and not the subject of riparian ownership, but each one may use it as it comes to bis land for any purpose to wbicb it can be applied without material injury to the just rights of others. This right to the use of water in its natural flow is not an easement nor is it merely an appurtenance, but it -is something inseparably annexed to the soil itself and exists jure naturae as parcel of the land. We think these principles will be found to be sustained by the authorities upon the subject. Gould on Waters, sections 204 to 224; Mason v. Hill, 5 B. & Ad., 1; Wood v. Wand, 3 Exch., 748; Stockport Waterworks Company v. Potter, 7 H. & N., 160; Wilts, etc., Canal Co. v. Swindon Waterworks Company, L. R. 9, Ch. App., 45 (s. c. L. R., 7 H. L., 697) ; 1 Farnham on Waters, secs. 62 to 65; Mayor v. Warren Mfg. Co., 59 Md., 96. In Prentice v. Geiger, 74 N. Y., 345, the doctrine is thus stated: “The use of the water, as it passes, is the only right which, in the nature of things, he (the riparian proprietor) can have in it, and he acquires no exclusive right beyond its actual appropriation. But as all proprietors on the stream have an equal right to the use of the water and to share in the benefits from its use, the right of the several persons is not an absolute, but a qualified one, and the use of each must be such as is consistent with the substantial preservation of the equal rights of others. There are some uses which by common consent a riparian owner may have of the water, as it flows upon his premises, although such use may to some extent interfere with the use of the 'stream in its natural flow by the proprietors below. As, for example, the proprietor above may use the water for domestic purposes — the watering of cattle and the like— although such use may diminish the-volume of the stream to the detriment of lower proprietors. The right to such uses, ■ — without which all beneficial use of the water by the riparian owner would be prevented — is allowed ex necessitate, and is universally recognized.”

Th court in Wilts, etc., Canal Co. v. Swindon Waterworks Company, supra, says: “All streams, however, are publici juris, and all the water flowing down any stream is for the common use of mankind who live on the banks of the stream; and therefore any person living' on the banks of the stream has an undoubted right to the use of the water for himself, his family, and his cattle, and for all ordinary domestic purposes, such as brеwing, washing, and so on. Those are the common purposes of water in the ordinary mode of using water.”

The principle is well stated in Strobel v. Kerr Salt Co., 164 N. Y., at page 320, as follows: “A riparian owner is entitled to a reasonable use of the water flowing by his premises in a natural stream, as an incident to his ownership of the soil, and to have it transmitted to him without sensible alteration in quality or unreasonable diminution in quantity.. While he does not own the running water’, he has the right to a reasonable use of it as it passes his land. As all other owners upon the same stream have the same right, the right of no one is absolute,'but is qualified by the right of others to have the stream substantially preserved in its natural size, flow and purity, and to protection against material diversion or pollution. This is the common right of all, which must not be interfered with by any. The use by each must, therefore, be consistent with the rights of others, and the maxim of sic uiere tuo observed by all. The rule of the ancient common law is still in force; aqua cumt et debet currere, ut currere solebat.”

After all that can be said, the question is whether the upper riparian proprietor is engaged in a reasonable exercise of his right to use the stream as it flows by or through his land, whether with or without retaining the water for a time or obstructing temporarily the accustomed flow, and whether he is so doing, as the above authorities show, is a question for the jury under the proper guidance of the court as to the law applicable to the particular state of facts. Hayes v. Waldron, 44 N. H., 580; Strobel v. Kerr Salt Co., supra. Rut in order that this right to have the water of a stream flow with undiminished quantity or unimpaired quality may be Successfully asserted, the person who sets up a claim to its enjoyment must show that he is a riparian proprietor or that in some way he has acquired riparian rights in the stream. There is nothing in this case, as now presented, which tends to prove that the plaintiffs are riparian proprietors in respect to the Eno River. They do not аllege that the city of Durham is the owner of any part of the banks of that stream, but, on the contrary, the proof tends to show that it is not. The Durham Water Company has a plant abutting on the river and has been using its waters for some years to supply the city of Durham, but that company for some unexplained reason has not been made a party to this suit, nor does it appear even hy inference what kind of contract it has with the city for furnishing water. As to all of these matters, we are left without any information. It would seem, therefore, that we cannot proceed to administer relief to the plaintiffs by enjoining the acts of the defendant, if this case is treated simply as one for the suppression of a nuisance, unless we had more definite allegation and proof as to the right of the plaintiffs to maintain this action, without the presence in the record of the water company аs a party. We-express though no decided opinion as to this feature of the case, as we find it unnecessary to do so.

Assuming that the city of Durham is a riparian owner or has riparian rights in the river, we yet think that the plain-tffs’ proof falls short of being sufficient for the court to interpose at this stage of the case a preliminary injunction and restrain the defendant until the hearing from continuing to ‍​‌‌​​‌​‌‌‌‌​‌​‌​‌‌‌‌​​‌‌​‌​​‌‌‌‌‌‌​​​‌​‌‌‌​​​‌‌‌‍commit the acts alleged to be injurious to the plaintiffs. If the defendant, being an upper riparian proprietor, and as such entitled to the ordinary use of the water, including the right to apply it in a reasonable manner to domestic uses and even to purposes of trade and manufacture, is using the water of the stream in an unreasonable manner and bas defiled tbe same to such an extent as to constitute an actual invasion of the rights of the plaintiffs, then both are clearly entitled to rеdress by action at law, and in case the nuisance be continued, to summary relief by injunction. Mayor v. Warren Mfg. Co., supra, and cases cited. Injunction is undoubtedly a proper remedy to prevent the fouling of the water of a running stream by its improper and unreasonable use when prejudicial to the rights of others interested in having the water descend to them in its ordinary natural state of purity. Goldsmith v. Turnbridge Wells Co., L. R. 1, Ch. App., 349, and cases supra. But have the plaintiffs made out any such case ? They must not only establish that they have a right to be protected, but they must in addition show by satisfactory proof that the right has actually been infringed in some material way or that the defendant is about to commit some act which will tend so far to impair the right as that the damage will be irreparable. “It is a well settled rule of equity procedure that an injunction to restrain a nuisance will issue only in cases where the fact of nuisance is made out upon determinate and satisfactory evidеnce. If the evidence be conflicting, and the injury be doubtful, that will constitute a ground for withholding the process. When the interposition by injunction is sought to restrain that which it is apprehended will create a nuisance, the proof must show that the apprehension of material and irreparable injury is well grounded upon a state of facts from which it appears that the danger is real and immediate.” New York Aqueduct Board v. Passaic, 45 N. J. Eq., 393; 2 Story Eq. Jur., 924a; Brookline v. Mackintosh, 133 Mass., 215; Atty. Gen. v. Heishon, 18 N. J. Eq., 410; 1 High on Injunctions (4 Ed.), secs. 174 and 811; Crossley v. Lightowler, L. R., 2 Ch. App., 483. In this case the plaintiffs have not shown by any satisfactory proof, such as the law requires, that the river at the intake of the water com pany bas been polluted. It was an easy matter for tbe plaintiffs to have tbe water analyzed at tbe place where it is drawn into tbe mains through which it is conveyed to the city, and it appears by the evidence in the case that a chemical and bacteriological analysis could have been made, which would have ascertained with a reasonable degree of certainty at least whether the water had been corrupted at the intake by the sewage and waste material deposited in the stream at defendant’s mill. There is proof on the part of the defendant that there are so many obstructions in the way of the passage of deleterious matter from the site of the mill to the intake and so many natural means presented for the renewal and purification of the stream by the influx of great quantities of fresh and pure water from its tributaries and by sedimentation as to make it improbable, if not impossible, that any deadly germs could “survive the journey” for so many miles between the two points on the river. The only evidence offered in answer to the proof introduced by the defendant and the inference to be fairly drawn from the failure to make a proper analysis tо establish the contention which seems susceptible of demonstration in that way, are the opinions of several physicians and one or two laymen to the effect that the pollution at the outlet of the defendant’s sewer will injuriously affect the water at the intake and endanger the health of the citizens of Durham who use the water taken from the river. Opinions of this kind are of the highest value under certain circumstances, but the law requires something more tangible and definite as a basis for seriously interfering with important industrial enterprises. In a case somewhat similar to this, in which j'ust such proof was relied on, the court said: “Speaking with all possible respect to the scientific gentlemen who have given their evidence, we think that in cases of this nature much more weight is due to the facts which are proved than to conclusions drawn from scientific investigations. The concliisions to be drawn from scientific investigations are no doubt in such cases of great value in aid of or in explanation or qualification of the facts which are proved, but in our judgment it is upon the facts which are proved, and not upon conclusions, we ought in these cases to rely. In our view, therefore, the scientific evidence ought to be considered as secondary only to the evidence as to the facts.” Goldsmith v. Turnbridge Wells Co., 1 Ch. App., 349. That case was reviewed at length and approved in Newark Aqueduct Board v. Passaic, supra, where a most learned discussion of the subject will be found, and the same may be said of Mayor v. Warren.Mfg. Co., supra, where Judge Alvey, who delivered the opinion of the court, states with his usual clearness and force the true principles and grounds upon which the courts proceed in such cases as the one we have under consideration. See also Missouri v. Illinois, 180 U. S., 208; Atty. Gen. v. Mayor, 45 L. J., 736. The injury here is entirely prospective and it is only ■possible to form an opinion upon evidеnce which does not enable us to do more than conjecture whether the apprehension of the plaintiffs is well grounded and free from reasonable doubt So far as the present state of the proof goes, the jurisdiction of a court of equity is invoked to restrain that which is alleged may, or at the most will, create a nuisance, and not that which in fact does create a nuisance. Missouri v. Ill., 26 Sup. Ct. Rep., 331; Dorsey v. Allen, 85 N. C., 358. But if the court should interfere by injunction, where it is merely probable that a nuisance will result from the acts of the defendant, we do not think the plaintiffs have sufficiently brought their case within the operation of this rule. Ellison v. Commissioners, 58 N. C., 57; Barnes v. Calhoun, 37 N. C., 199; Simpson v. Justice, 43 N. C., 115; Vickers v. Durham, 132 N. C., 880; Dorsey v. Allen, supra; Stockton v. Railroad, 50 N. J. Eq., 80. Proof easily accessible to the plaintiffs and which would have established the fact of nuisance beyond any dotibt was not produced, but the court is urged to resort to evidence of a secondary and less satisfactory nature upon wbicb to determine tbe important rights of tbe parties. Under tbe facts and circumstances, as dis; closed by tbe record, we would have been obliged to reverse the ruling of tbe court below and leave tbe plaintiffs to tbe necessity of making good their allegation of nuisance at the bearing, in order to entitle themselves to injunctive relief, and this course would be pursued, if we were confined in our investigation of this case to tbe mere fabt of nuisance. But we are not so restricted, as tbe Legislature has spoken upon tbe subject of this controversy and it is our duty to give due heed to what it has said. Its declared will is the law and must be enforced, if it has been sufficiently expressed or by fair construction it can be ascertained. Tbe Legislature by chapter 670 of tbe Laws of 1899 undertook to protect public water supplies from contamination by providing for a thorough system of inspection and tbe adoption of suсh sanitary measures as would be ‍​‌‌​​‌​‌‌‌‌​‌​‌​‌‌‌‌​​‌‌​‌​​‌‌‌‌‌‌​​​‌​‌‌‌​​​‌‌‌‍likely to contribute to that end. This law contained no provision as to tbe discharge of 'sewage into any streams of tbe State from wbicb a public water supply is taken, but simply related to tbe subjects of inspection and sanitation. Believing that such a system was not adequate to tbe full protection of tbe people of this State from contamination of tbe water used for drinking and other domestic purposes, tbe Legislature passed another act, it being chapter 159 of tbe Laws of 1903, entitled, as tbe former act, “An Act to Protect Water Supplies.” This act contained all the features of tbe Act of 1899 and provided generally in section 1 that water companies should take reasonable precautions to insure tbe purity of water supplied to tbe public. It is provided in section 2 that companies wbicb are supplied frоm lakes, ponds or small streams not more than fifteen miles in length shall at their own expense have a sanitary inspection of their entire water shed not less than once in every three cálendar months and special inspections wbeu circumstances seem to require them. It then directs how the inspection shall be made, namely, by a particular examination of the premises of every inhabitant of the water shed and a search in passing from house to house for dead bodies of animals or the accumulation of filth, excepting uninhabited fields and wooded tracts which are free from suspicion. Where the supply of water is drawn from rivers or large creeks having a minimum daily flow of ten million gallons the provisions of section 2 shall apply only to the fifteen miles of water shed draining into the said river or creek next above the intake of the water company. Provision is thеn made for an inspection by every city or town having a public water supply of its entire watershed, and it is declared to be a misdemeanor to deposit dead animals or human excreta on the watershed of any water supply or to defile, corrupt or pollute any well, spring, drain, branch, brook, creek or other source of a public water supply. Then follows section 13 of the act, which is as follows: “No person or municipality shall flow or discharge sewage into any drain, brook, creek or river from which a public drinking water supply is taken, unless the same shall have been passed through some well known system of sewage purification approved by the State Board of Health; and the continual flow and discharge of such sewage may be enjoined upon application of any person.”

This act has been inserted in the Revisal as chapter 76 аnd is not materially different as there found from what it was in the original form. The provision in regard to the flowing or discharging of sewage into a stream from which a public water supply is taken, seems to be very explicit and susceptible of but one construction. The defendant contends: 1. That section 13 of chapter 159 of the Act of 1903, it being section 3051 of the Revisal, applies only to sewers maintained within the distance of fifteen miles above the intake, which is the watershed as defined in the second and third sections of chapter 159 of the act and sections 3045 and 3046 of the Revisal 2. That if the provision of section 13 is construed to apply to this defendant, whose mill is situated seventeen miles above the intake of the Durham Water Company, then it is unconstitutional and void as being in effect a taking of the defendant’s property without condemnation and without compensation; in other words, it is confiscation. We cannot assent to either of these propositions. If we could think that the acts of the defendant are not within the inhibition of that law or that its property is about to be unlawfully taken or interfered with, we would not hesitate to interpose and protect it from such contemplated action. But the meaning of the Legislature is so clear to us and its power thus to legislate is so well established, that we could not so act without plainly disregarding the mandate of the law-making body given in the rightful exercise of its constitutional power. As to the defendant’s first contention, it is clear that by the second and third sections of the act the Legislature intended to establish a watershed solely for the purpose of inspection. This is to be deduced from the very language in those sections and, further, it appears from the manner in which the inspection is required to be made that sewage was not the source of infection or pollution intended to be guarded against by the inspection of the watershed. It is plainly excluded by the very terms of those two sections. At least it so appears to ns. But if there could be any doubt as to the true meaning of that part of the act, we think that section 13 (Revisal, section 3051), which is quoted above, is so broadly worded as to absolutely preclude the construction that the Legislature intended to limit the acts therein, prohibited to be done to the watershed of fifteen miles above the intake. We can give to that section no other meaning unless we read into it something that is not there and clearly not intended to be there. The act forbidden is “the flow or discharge of sewage into any river from wbicb a public drinking supply is taken,” unless purified as therein provided. It does not confine its operation to the watershed, but extends to any strеam from which water is taken to be supplied to the public for drinking purposes. To limit its scope as suggested would be to defeat the clearly expressed intent of the Legislature, and this we are not.permitted to do. We entertain no doubt as to what was intended and we are constrained to hold that the admitted acts of the defendant are within the prohibition of the statute.

The second position is equally untenable. It will be observed by reading the act that it is not required that the sewage discharged into the stream should injuriously affect the water at the intake; it is quite sufficient if it pollutes the river at the sewer’s outlet. The Legislature has decided that it is desirable to preserve our natural streams in at least their present state of purity, and where they have been polluted, to remove the cause as speedily and effectually as possible. It has, therefore^ said that no pеrson shall deteriorate the water at all by sending sewage into a natural stream until it has been purified and made wholesome or until all the noxious matter in it has been eliminated. And this means, of course, that the water shall not be poisoned by sewage at the outfall. We must assume that the defilement of the water is an injury which is forbidden by the Legislature for perfectly good and sufficient reasbns. It is not for us to question the policy Or expediency of such an enactment. In this respect the Legislature has a large discretion to be exercised in such way as will in its judgment promote the interests and advance the welfare of the people, and it has this discretion to such an extent as to be virtually a law unto itself so far as the manner of its exercise is concerned. Such legislation is not intended merely to abate an existing nuisance, but to prevent that being done which is a menace to the public health and which it is supposed may become a deadly peril and a public nuisance because fatal in its consequences, It is "not, there fore, a void law because it is founded upon mere apprehension of evil, but is a precautionary measure which is clearly within the police power of the State and to be adopted when deemed necessary to secure the public health. We think the general principles we have thus stated will be found clearly stated by Sir George Jessel, for the court, and supported by eogent reasoning in Attorney-General v. Cockermouth Local Board, L.. R., 18 Eq., 172. That case and this one are not unlike in the facts to which the principle was applied. But a more elaborate treatment of the doctrine in its relation to the police power as its basis, will' be found in. State v. Wheeler, 44 N. J. L., 88. The facts in that case were also like those we now have before us in this rcord. The language of Judge Magie, speaking for the court, would seem to have beеn uttered with reference to the facts we have here, did we not know that it was actually used in another case. Its appositeness must be our apology for quoting copiously from that case. The court says: “The whole act plainly shows a design to protect from pollution the waters of creeks, etc., used as the feeders for reservoirs for public use, without any reference to whether such pollution in fact appreciably affects the waters when arrived at the reservoir. Nor does such a construction render this act objectionable. The design -of the act is not to take property for public use, nor does if do so within the meaning of the Constitution. It is intended to restrain and regulate the use of private property so as to protect the common right of all the citizens of the State. Such acts are plainly within the police power of the Legislature, which power is the mere application to the whole community of the maxim, ‘sic utere tuo, ut alienum non laedas.’ Nor does such a restraint, although it may interfere with the profitable use of the property by its owner, make it an appropriation to a public use so as to entitle him to compensation. Of the right of the Legislature thus to restrain the use of private property in order to secure the gen eral comfort, health and prosperity of the State, ‘no question ever was or, upon acknowledged general principles, ever can be made, so far as natural persons are concerned.’ Redfield, C. J., in Thorpe v. Rutland R. R., 27 Vt., 149. The same view has been always held in this State, and notably in the case of State v. Common Pleas of Morris, 7 Vroom, 72. It was also there held that the extent to which such interference with the injurious use of property may be carried, is a matter exclusively for the judgment of the Legislature when not controlled by fundamental law. Nor is there anything to render such legislation objectionable because in some instances it may restrain the profitable use of private property, when such use in fact does not directly injure the public in comfort or health. Eor to limit such legislation to cases where mutual injury has occurred, would be to deprive it of its most effective force. Its design is preventive, and to be effective it must be able to restrain acts which tend to produce public injury. Many instances of such an exercise of this power can be found. The State regulates the use of property in intoxicating liquors by restraining their sale, not on the ground that each particular sale does injury, for then the sale would be prohibited, but for the reason that their unrestricted sale tends to injure the public morals and comfort. The State is not bound to wait until contagion is communicated from a hospital estаblished in the heart of a city — it may prohibit the establishment of such a hospital there, because it is likely to spread contagion. So the keeping of dangerous explosives and inflammable substances, and the erection of buildings of combustible materials within the limits of a dense population, may be prohibited because of the probability or possibility of public injury. Such instances might be indefinitely multiplied, but these are sufficient to illustrate this case. The object of this legislation is to protect the public comfort and health. Eor that purpose the Legislature may restrain any use of private property which tends to the injury of those public interests. That the pollution of ‍​‌‌​​‌​‌‌‌‌​‌​‌​‌‌‌‌​​‌‌​‌​​‌‌‌‌‌‌​​​‌​‌‌‌​​​‌‌‌‍the sources of the public water supply does so tend, no one will deny.”

We might well content ourselves with stopping here and resting our judgment upon the unanswerable argument there presented, and we would do so but fоr the great importance of the question and far-reaching consequences of our decision. The police power, by virtue of which this legislation is vindicated and justified, is no new or unusual exercise of the sovereign will. It had its origin in the most ancient maxims of jurisprudence. All property was originally acquired subject to regulation in its use by those cardinal principles embodied in the maxim, “The safety of the people is the supreme law,” and that other maxim, “So use your own as not to injure another.” This was the original condition imposed upon the right of property in things, that it should be enjoyed subject to reasonable regulations when considered necessary to promote the general good of society. A good statement of the nature and extent of this police power is to be found in Thorpe v. Railway Co., 27 Vt., 140, where Hedfield, C. J., says: “This police power of the State extends to the protection of thе lives, limbs, health, comfort and quiet of all persons, and the protection of all property within the State, according to the maxim, sic utere tuo, ut alienum non laedas, which being of universal application, it must of course be within the range of legislative action to define the mode and manner in which every one may so use his own as not to injure others. There is also the general police power of the State, by which persons and property are subjected to all kinds of restraints and burdens, in order to secure the general comfort, health and prosperity of the State, of the perfect right, in the Legislature, to do which no question ever was, or, upon acknowledged general principles, ever can be made, so far as natural persons are concerned. And it is certainly calculated to excite surprise and alarm, that the right to do so in regard to railways should be made a seriоus question. This objection is made generally upon two grounds: 1. That it subjects corporations to virtual destruction by the Legislature; and, 2. That it is an attempt to control the obligation of one person to another, in matters of merely private concern. The first point has already been somewhat labored. It is admitted that the essential franchise of a private corporation is recognized by the best authority as private property, and cannot be taken without compensation, even for public use.”

lie then proceeds to demonstrate conclusively that the police power resides primarily and ultimately in tire Legislature, and that private interests of every kind fall legitimately within the range of legislative control, both in regard to natural and artificial persons. “It seems incredible,” he says, “how any doubt should have arisen upon the point now before the сourt. And it would seem it could not, except from some undefined apprehension, which seems to have prevailed to a .considerable extent, that a corporation did possess some more exclusive powers and privileges upon the subject of its business, than a natural person in the same business, with equal power to pursue and to accomplish it, which, I trust, has been sufficiently denied.” The general conclusion reached is that there can be no manner of doubt that the Legislature may, if the public good is deemed to demand it — of which it is the judge, its judgment in all doubtful cases being final — require property to be used by persons, as well as their business to be conducted, so as to prevent harm or injury to the public. The same principle is strongly stated in State v. Common Pleas of Morris, 36 N. J. L., 12. “While alcoholic stimulants are recognized as property and are entitled to the protection of the law, ownershiр in them is -subject to such restraints as are demanded by the highest considerations of public expediency. Such enactments are regarded as police regulations, established for the prevention of pauperism and crime, for the abatement of nuisances and the promotion of public health and safety. They are a just restraint of an injurious use of property, "which the Legislature has ° authority to impose, and the extent to which such interference may be carried must rest exclusively in legislative wisdom where it is not controlled by fundamental law. It is a settled principle, essential to the right of self-preservation in every organized community, that however absolute may be the owner’s title to his property, he holds it under the implied condition That its use shall not work injury to the equal enjoyment and safety of others, who have an equal right to the enjoyment of their property, nor be injurious to the community.’ Eights of property are subject to such limitations as are demanded by the common welfare of society, and it is within the range and scope of legislative action to declare what general regulations shall be deemed expedient. If, therefore, the Legislature shall consider the retail of ardent spirits injurious to citizens, or productive of idleness and vice, it may provide for its total suppression. Such inhibition is justified only as a police regulation, and its legality has been recognized in well considered cases. It is neither in conflict with the power of Congress over subjects within its exclusive jurisdiction, nor with any provisions of our State Constitution, nor with general fundamental principles. Cooley on Cons. Limitations, p. 583, and cases there referred to; Thurlow v. Massachusetts, 5 How., 504. It is not necessary to amplify discussion on this point, or to criticise the cases in detail. The view here taken underlies' the whole subject of police regulations, and cannot logically be narrowed in its application.”

In Commissioners v. Alger, 7 Cush., 53, Chief Justice Shaw, referring to the police power, says: “This is very different from the right of eminent domain, the right of a government to take and appropriate private property to public Lise, whenever the public exigency requires it; which can be done only on condition of providing a reasonable compensation therefor. The power we allude to is rather the police power, the power vested in the Legislature by the Constitution, to make, ordain and establish all manner of wholesome and reasonable laws, statutes and ordinances, either with penalties or without, not repugnant to the Constitution, as they shall judge to be for the good and welfare of the commonwealth, and of the subjects of the same. It is much easier to perceive and realize the existence and sources of this power than to mark its boundaries, or prescribe limits of its exercise. There are many cases in which such a power is exercised by all well ordered governments, and where its fitness is so obvious, that all well regulated minds will regard it as reasonable.” He then cites numerous instances in which the power can be rightfully exercised, and among them the use of property near inhabited villages in such a way as to produce dangerous exhalations, injurious to health and dangerous to life, and proceeds: “Nor does the prohibition of such noxious use of property, a prohibition imposed because such use would be injurious to the public, although it may diminish the' profits of the owner, make it an appropriation to a public use, so as to entitle the owner to compensation. He (the owner) is restrained, not because the publiс have occasion to make any use of the property, or to make any benefit or profit to themselves from it; but because it would be a noxious use, contrary to the maxim, sic utere tuo, ut alienum non laeclas. It is not an appropriation of 'the property to a public use, but the restraint of an injurious private use by the owner, and is therefore not within the principle of property taken under the right of eminent domain.” A case directly in point is State v. Streeper, 5 N. J. L., 115.

The very contention made in this case that the property of the defendant is taken unlawfully and without due pro cess of law, and that it is denied the equal protection of the laws, thereby violating the fourteenth amendment to the Constitution of the United States, was fully met and answered in Mugler v. Kansas, 123 U. S., 623, a leading and authoritative decision ‍​‌‌​​‌​‌‌‌‌​‌​‌​‌‌‌‌​​‌‌​‌​​‌‌‌‌‌‌​​​‌​‌‌‌​​​‌‌‌‍upon this question. The court, by Ilarlan, J., there says: “Undoubtedly the State, when providing by legislation for the protection of the public health, the public morals or the public safety, is subject to the Constitution of the United States, and may not violate rights secured or guaranteed by that instrument, or interfere with the execution of the powers confided to the general government. But neither the fourteenth amendment, broad and comprehensive as it is, nor any other amendment, was designed to interfere with the power of the State, sometimes termed its police power, to prescribe regulations to promote the health, peace, morals, education, and good order of the people, and to legislate so as to increase the industries of the State, develop its resources, and add to its wealth and prosperity.” Tie then asks the question, “AVho shall determine whether the particular use of property is injurious to the public ?” and gives this answer: “Power to determine such questions, so as to bind all, must exist somewhere; else soсiety will be at the mercy of the few. Under our system that power is lodged with the legislative branch of the government. It belongs to that department to exert what are known as the police powers of the State, and to determine, primarily, what measures are appropriate or needful for the protection of the public morals, the public health, or the public safety.” Summing up and stating the result of all the decisions of that court, it is further said : “The principle, that no person shall be deprived of life, liberty, or property, without due process of law, was embodied in substance in the Constitutions of nearly all, if not all, of the States at the time of the adoption of the fourteenth amendment; and it has never been regarded as incompatible with the princi- pie,. equally vital, because essential to the peace and safety of society, that all property in this сountry is held under the implied obligation that the owner’s use of it shall not be injurious to the community. This court has, nevertheless, with marked distinctness and uniformity, recognized the necessity, growing out of the fundamental conditions of civil society, of upholding State police regulations which were enacted in good faith, and had appropriate and direct connection with that protection to life, health and property which each State owes to her citizens. A prohibition simply upon the use of property for purposes that are declared, by valid legislation, to be injurious to the health, morals, or safety of the community, cannot, in any just sense, be deemed a taking or an appropriation of property for the public benefit. Such legislation does not disturb the owner in the control or use of his property for lawful purposes, nor restrict his right to dispose of it, but is only a dеclaration by the State that its use by any one, for certain forbidden purposes, is prejudicial to the public interests.”

It was said in Munn v. Illinois, 94 U. S., 124, that while power does not exist with the whole people to control rights that are purely and exclusively private, government may require “each citizen to so conduct himself, and to use his cwn property, as not unnecessarily to injure another. This is the very essence of government; and has found expression in the maxim, sic utere tuo, ut alienum non laedas. Erom this source come the police powers, which, as was said by Chief Justice Taney, in the License cases, 5 How., 583, are nothing more nor less than the powers of government inherent in every sovereignty, that is to say, the power to govern men and things.” And again at page 124: “A body politic is a social compact by which the whole people covenants with each citizen, and each citizen with the whole people, that all shall be governed by certain laws for the common good.” The same court said in Beer Co. v. Massachu setts, 97 U. S., 32: “If tbe public safety or the public morals require the discontinuance of any manufacture or traffic, the hand of the Legislature cannot be stayed from providing for its discontinuance, by any incidental inconvenience which individuals or corporations may suffer. All rights are held subject to the police power of the State.” But the case of Fertilizing Company v. Hyde Park, 97 U. S., 659, seems to be directly in point. It involved the validity of an ordinance against conducting' an unwholesome business within the corporate limits of the village of Hyde Park, and the plaintiff, who at great expense had erected fertilizer works in the county and transported animal matter through the village, sought to enjoin the enforcement of the ordinance which it claimed would utterly ruin its business. The same contention was made there as here. The court in Mugler v. Kansas, 123 U. S., at page 666, referring to that case and answering the contention, said: “The enforcement of the ordinance in question operated to destroy .the business of the company, and seriously to impair the value of its property. As, however, its business had become a nuisance to the community in which it was conducted, producing discomfort, and often sickn-ess, among large masses of people, the court maintained the authority of the yillage, acting under legislative sanction, to protect the public health against such nuisance. It (the court) said: ‘We cannot doubt that the police power of the State was applicable and adequate to give an effectual remedy. That power belonged to the States when the Federal Constitution was adopted. They did not surrender it, and they all have it now. . It extends to .the entire property and business within their local jurisdiction. Both are subject to it in all proper cases. It rests upon the fundamental principle that every one shall so use his own as not to wrong and injure another. To regulate and abate nuisances is one of its ordinary functions.’ ”

Cases might be cited almost without number to sustain tbe general proposition now being considered. We will refer to several decided in tbe courts of other States wbicb bave a direct bearing upon tbe question. State v. Griffin, 69 N. H., 1; City of Durango v. Chapman, 27 Colo., 169; Com. v. Russell, 172 Pa. St., 506; Haskell v. New Bedford, 108 Mass., 208.

This court has said in Brown v. Keener, 74 N. C., 714: “It is too late to question that tbe public power of a State' (wbicb is a part of its general legislative power) extends to tbe providing for every object wbicb may be reasonably considered necessary for tbe public safety, bealtb, good order or prosperity, and wbicb is not forbidden by some restriction in tbe State or Federal Constitution, or by some, recognized principle of right and justice found in the common law. It is unnecessary to consider at present the limits of this extensive power, since it clearly includes tbe right to provide for and cоmpel tbe clearing out not only of such water courses as are naturally navigable, but of all such water courses and drains as are not and never were navigable, but wbicb are necessary for carrying off tbe surplus rain water, thereby promoting tbe public health, and enabling a considerable portion of territory otherwise uninhabitable to be brought into cultivation. Norfleet v. Cromwell, 70 N. C., 634; People v. Mayor of Brooklyn, 4 N. Y., 440; Coster v. Tidewater Company, 18 N. J. Eq., 54; State v. Blake, 36 N. J. L., 442; Reeves v. Treasurer of Wood County, 8 Ohio St., 343; Cooley Const. Lim., chap. 16; 2 Dillon Mun. Corp., sec. 506.” Other cases wbicb bave been decided by this court involving in one form or another questions arising out of tbe exercise of the police power are: State v. Muse, 20 N. C., 463; Intendant v. Sorrell, 46 N. C., 49; Pool v. Trexler, 76 N. C., 297; Norfleet v. Cromwell, 70 N. C., 634; State v. Joyner, 81 N. C., 534; Winslow v. Winslow, 95 N. C., 24; State v. Yopp, 97 N. C., 477; State v. Pendergrass, 106 N. C., 664; State v. Stovall, 103 N. C., 416; State v. Hay, 126 N. C., 999; Hutchins v. Durham, 137 N. C., 68; State v. McGinnis, 138 N. C., 724.

It is of course no defense that pure and wholesome water can be obtained from other sources than the Eno River. 2 Farnham on Waters, sec. 515. The fact is that the water supply of Durham is drawn from that stream and that is what protects it under the act from being fouled by sewage. The preservation of the publiе health was the chief concern of the Legislature and the purpose of the act was to remove any possible danger which should menace it. Whether the plaintiffs would have any standing in court without the aid of the statute, and if left to depend upon its right to use the water of the Eno River under its contract with the water company, if it has one, is a question not presented for consideration, and upon it we express no opinion. Our decision must rest solely on. the provisions of the statute, which is susceptible of but one meaning, and which declares explicitly that streams used as is the Eno River shall not be polluted, as disease may be communicated to the inhabitants of towns and cities by the use of the water. The fact that the public supply is taken from the stream is sufficient to bring it within the protection of the act, for we must construe the law as it is written and according to its true intent, looking аt the evil sought to be remedied and giving it such effect 'as will not in the least disappoint the will of the people as expressed therein. If any hardship results, it is not from the construction of the law, but from the law itself and the declared policy of the State that the public health must be safeguarded. The welfare of the public is considered in law superior to the interests of individuals, and when there is a conflict between them, the latter must give way. “Necessitas publica major est quam privata.” As the law is plainly written, so must we decide. The remedy of those who may suffer, is by an appeal to the law-making body, who alone can abate the rigor of its enactment.

The judgment must be affirmed, but the court below may so draw its order as to give the defendant a reasonable opportunity to comply with the statute. The injunction should ‍​‌‌​​‌​‌‌‌‌​‌​‌​‌‌‌‌​​‌‌​‌​​‌‌‌‌‌‌​​​‌​‌‌‌​​​‌‌‌‍operate so as to produce the least possible injury to the defendant’s property and business consistent with the maintenance of the rights and interests of the public.

Affirmed.

Case Details

Case Name: Durham v. Cotton Mills.

Court Name: Supreme Court of North Carolina

Date Published: May 28, 1906

Citation: 54 S.E. 453

Court Abbreviation: N.C.