163 Wis. 219 | Wis. | 1916
The sole question presented by this appeal is whether or not the evidence sustains the findings of the trial court. The law upon the right of a municipality to discharge sewage into a watercourse to the detriment of the lower riparian owner is fully stated in the case of Winchell v. Waukesha, 110 Wis. 101, 108, 85 N. W. 668, where the court said:
“The right of the riparian owner to the natural flow of water substantially unimpaired in volume and purity is one of great value, and which the law nowhere has more persistently recognized and jealously protected than in Wisconsin. Not alone the strictly private right, but important public interests, would be seriously j eopardized by promiscuous pollution of our streams and lakes. Considerations of aesthetic attractiveness, industrial utility, and public health and comfort are involved. . . . The great weight of authority, American and English, supports the view that legislative authority to install a sewer system carries no implication of authority to create or maintain a nuisance, and that it matters not whether such nuisance results from negligence or from the plan adopted. If such nuisance be created, the same remedies may be invoked as if the proprietor were an individual.”
The court found that the system‘adopted by the defendant city for the disposition of its sewage was one properly adapted
Erom the testimony it appears that the tank in question was constructed in 1907 easterly from the point where it is now discharged into Rountree branch several hundred feet; that at the time of its erection a pipe extended from the tank directly into Rountree branch; that in the year 1911 one Caroline Stender, an upper riparian owner, complained of the condition of the stream and brought suit against the defendant city asking to have the tank declared a nuisance both as to herself and as to the public. This suit was settled by an agreement under which the city paid a sum of money and constructed a pipe across the lands of Caroline Stender and several hundred feet down stream to the point where the effluent is now discharged.
It further appears from the testimony of Mr. Tullv, an expert, that the sewage is treated solely by the action of bacteria. The sewage is first discharged into the septic tank, where it is attacked by a specific type of bacteria which causes its liquefaction. The bacteria grow and cultivate without ■oxygen, and in their endeavor to obtain energy for their activi
The defendant produced two witnesses who own land adjoining the stream below the Johns lands. These witnesses testified that they had no trouble upon their premises; that there was no odor, and that they had not noticed that the water was contaminated. It appeared, however, that before the stream reached their premises its volume was nearly doubled by water flowing from a spring. The third witness produced for the defendant testified as to the amount of damages, but did not deny the testimony offered on behalf of the plaintiffs as to the character of the discharge below the mouth ■of the pipe, except to say that he had never noticed any smell from the Rountree branch on the Johns or Carthew lands.
! The trial court apparently adopted the findings of Mr. Tully, the expert, in totOj giving little or no weight or effect to the testimony of the plaintiffs’ witnesses. We have carefully examined the evidence given by Mr. Tully, and from such examination we are of the opinion that it does not in any material aspect of the case contradict the testimony of plaintiffs’ witnesses, and, unless it does so, their testimony stands practically uncontradicted in the case. Mr. Tully was a fair, frank witness. He examined the stream on two different occasions, once between the 9th ánd the 14th of October, 1914, and the second time in the month of November, 1914, at or shortly before the time of the trial. He does not say or pre-bend to say what the condition of the stream was during the summer months, and bases his conclusions entirely upon a bacteriological examination of the effluent and the water found in the stream upon the occasion of his visits to the stream at the times stated. He testified that it is practically impossible to have a septic tank and thus to purify sewage without having a stream somewhat polluted where the septic tank enters into it; by pollution, meaning bacterial pollution. He was asked this question: “From what you have determined of the character of the water, was it water that cattle
From Mr. Tully’s testimony it appears that the discharge-of sewage into a stream may result in the production of a nuisance principally in three ways; these may appear separately or may be in combination: (1) The mingling of undigested, sewage with the waters of the stream; (2) the deposit of undigested sewage on the bed and banks of the stream; (3) bacterial pollution.
In order to properly dispose of the sewage it appears that two factors must combine. There must be a septic tank of sufficient capacity to permit the completion of the bacteriological process before the sewage effluent passes over the weir of the tank and into the discharge pipe; and second, the process must be properly carried on, that is, the tank must not be-overloaded, the tank contents must not be stirred up. It further appeared that, in addition to the methods provided for the discharge of the sewage from one compartment to another in the tank, holes had been cut leading from one compartment to another so that more sewage could be passed through the tank and its capacity thereby increased. The conditions described by plaintiffs’ witnesses may be the result of crowding the tank beyond its capacity; may be due to the fact that the-holes cut leading from one compartment to another permit the passage of undigested matter.
Mr. Tully testified very fully as to the results of the examination made by him from the samples of water taken. But from this testimony it appears that they were satisfactory from a bacteriological standpoint as of the date when the
Giving to the testimony of Mr. Tully all the force and effect that can fairly be claimed for it, it does not fairly contradict the testimony of plaintiffs’ witnesses, for the testimony of both may be entirely true. Assuming the testimony of plaintiffs’ witnesses to be true, as we are bound to do, it being practically uncontradicted in the case, the findings of the trial court are manifestly against the great preponderance of the evidence and the plaintiffs are entitled to the relief prayed for in the complaint.
By the Court.- — Judgment reversed, and cause remanded for further proceedings in accordance with this opinion, the circuit court to assess damages upon this record or take further testimony upon that point, as it may determine.