184 Wis. 352 | Wis. | 1924
The judgment in the instant case represents the total damages sustained by the plaintiff Mitchell Realty Company by reason of the alleged illegal acts not only of the city of West Allis but also of the private corporations whose plants are situated along the creek and to the east of and below the limits of such city, and it is conceded by the counsel in this case that the theory upon which this judgment is based assumed that the city of West Allis can be held responsible for all of the damages, such city and the private' corporations being joint tortfeasors. It also appears from the written opinion filed by the court that the city of West Allis may enforce contribution from the owners of the various industrial plants to reimburse it for the amount of the damages respectively caused by them.
Appellant’s counsel first raises the equitable doctrine of comparative convenience. It is contended that prior to the installation of the septic tanks the territory now comprising the city of West Allis and that along the banks of the creek to the east of the same, up to the point where the creek flows into the Kinnickinnic river, was devoted almost-exclusively to agricultural purposes; that since the city of West Allis was incorporated as a city the territory within its limits was
On this branch of the argument defendant’s counsel rely
“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. . . . The improvement of streets and alleys by a municipality is a lawful act, and, if unavoidable injury ensue, no liability results. That which the law authorizes is not a nuisance, so as to give a right of action. . . . When the population becomes dense, and towns or villages gather along its banks, the stream naturally suffers still greater deterioration. Against such injury, incident as it is to the growth and industrial prosperity of the community, the law affords no redress. So, in cities and towns, with their numerous inhabitants and diversified business; with their mills, shops, and manufac-tories; with their streets and sewers, — all the products and means of a high civilization, — it would be impossible that the pure streams that flow in from the farm sides should remain uncontaminated; and those that live upon the lower banks of such stream must, for the general good, abide the necessary results of such causes. ... In the case before us the stream flowed through the heart of the city of Martins-ville before it reached the lands of appellee. Will it be said that there is any liability for contamination from the refuse of a city? Must it be that one who lives on the lower lands on the banks of a stream shall forbid forever the founding of a city on the lands above; forbid the grading of streets, the building of sewers, the erection of mills, factories, hospitals, or other means of livelihood, comfort, and convenience of the inhabitants?”
There is much force in what is said in the opinion in the Richmond Case. The matter of sewage disposal is one which has been particularly troublesome to municipalities
While great progress has been made along the line of increasing the efficiency of sewage-disposal plants, nevertheless it is recognized that in most instances such plants fall short of the mark of a complete disposal. It appears from the evidence that the Imhoff plant, installed by the defendant, city, constitutes a standard and well recognized system, but that the average results achieved do not exceed approximately a fifty per cent, disposal; and it seems also to be conceded in this case that the plant installed by the city of West Allis is a few points above the average in efficiency of similar plants established in other municipalities. The natural drainage of the area comprising the city of West Allis and the town of Greenfield is towards the east, into Lake Michigan. The city of Milwaukee, and in fact the entire county, for many years past has been up against a similar proposition to that presented by the defendant city in this case. Some years ago the city of Milwaukee, which now has a population of about half a million inhabitants, found it necessary to install at great expense the so-called flushing plant, the object of which is to flush the river by means of large volumes of water pumped from Lake Michigan. The latter city has also designed a sewage-disposal plant, and in a comparatively recent period there was established what is known as the Metropolitan Sewerage Commission, for the purpose of providing for the drainage of the metropolitan area and the disposal of sewage. The es-
West Allis, which is known as an industrial city, is not as fortunate as the city of Milwaukee, in that it is not located upon a large body of water. It is practically an inland city. While the territory that now comprises West Allis was within a comparatively few years inhabited by an agricultural community, Honey creek afforded ample means of drainage in a manner promotive of the welfare of the inhabitants;
The authorities of the city of Milzvaukee have undoubtedly appreciated the difficulties which confronted the defendant city, and have therefore waived in behalf of the city any claim for damages to which it might be entitled by reason of the nuisance affecting Jackson Park. But however much we 'may sympathize with the defendant, the situation, which was largely created by it, is destructive of property values, to the great detriment of the owners thereof, and also affects the health of such owners and others. What the defendant city has actually accomplished in the establishment and maintenance of this sewage-disposal plant and its sewage system has redounded to the benefit of' its inhabitants, but t.o the' great detriment of others who are largely interested in the premise's. While the decision in the Richmond Case finds some support by other authorities, it is diametrically opposed to what has been repeatedly held -by this court, as will appear from' the opinion in the' case of Winchell v. Waukesha, 110 Wis. 101, 85 N. W. 668. Among other things it is there said:
“The right of the riparian owner, to the natural flow of water substantially unimpaired in volume and purity is one*363 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 jeopardized by promiscuous pollution of our streams and lakes. Considerations of aesthetic attractiveness, industrial utility, and public health and comfort are involved. Amid this conflict of important rights, we cannot believe that the legislature concealed, in words merely authorizing municipalities to raise and expend money for the construction of sewers, a declaration of policy that each municipality might, in its discretion, without liability to individuals, take practical possession of the nearest stream as a vehicle for the transportation of its sewage in crude and deleterious condition. . . . 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.”
The defendant city therefore cannot hide behind or protect itself by reason of the fact that it has created and maintains a recognized sewage-disposal plant, or that it was not negligent in its adoption of a proper plant. In creating a nuisance, as is clearly established in the instant case beyond controversy, it must respond in damages, and it is subject to the injunctive relief prayed for by the plaintiff Realty Company, having as its aim the abatement of the nuisance.
It is further argued by defendant’s counsel that his client is not liable for the collection of the surface and storm waters and the leading of such waters into the creek; that the natural flow of the surface water is into this stream.; and that any improvement made in any o.f the streets of the city of West Allis is designed to discharge its duty in caring for its streets and the needs of its inhabitants and also for the furnishing of proper facilities to the manufacturing institutions located within its boundaries. If the instant case involved solely the collection of surface water and the leading of the same into the creek, there might be some justification for counsel assuming this position. But the
Finally, it is claimed by defendant’s counsel that if his client was liable, at all it was only for. such damages as were sustained by reason of the unlawful acts committed by it; in other words, that it cannot be held liable as a joint tort-feasor for the whole amount of damage resulting from the impurities led into the stream through the sewage-disposal plant ánd the sanitary and storm sewers and that resulting from the acts of the industrial plants located in the town of Greenfield.
Plaintiffs’ counsel, in part," justify their theory and the one adopted by the court upon the ground that the defendant and others contributing to the pollution of the stream are joint tortfeasors and that each contributes to the creation and maintenance of the nuisance, and that consequently they are jointly and severally liable for the'entire damage; in other words, they employ the doctrine applicable to the ordinary negligence cases to the instant case. In support of their theory they cite Folsom v. Apple River L. D. Co. 41 Wis. 602; Cook v. M., St. P. & S. S. M. R. Co. 98 Wis. 624, 74 N. W. 561; Olson v. Phœnix Mfg. Co. 103 Wis. 337,
In the Folsom Case the plaintiff, the owner of lands adjacent to Apple river, a navigable stream, brought an action for damages against the defendant, which maintained a dam on the river above plaintiff’s land, for wrongfully discharging large quantities of water beyond the natural flow, over the dam, which resulted in the overflow of plaintiff’s lands. Below plaintiff’s land a bridge had been constructed which did not obstruct the water at its natural flow, but when the amount of the flow exceeded the natural volume passing down the stream the bridge created an obstruction which, together with the excessive flow, resulted in the overflow. Error was assigned by defendant’s counsel in the following instructions given by the trial court:
“If the company, in using the water beyond its natural flow, would not have overflowed the plaintiff’s meadow had there been no obstruction at the bridge, but would, in using the water beyond its .natural flow, have .overflowed the plaintiff’s meadow by reason of the obstruction at the bridge, that fact would not excuse the company from liability to the plaintiff, provided the company had notice beforehand of such obstruction, and of the fact that its effect, together with the company’s use of'the water beyond its natural flow, would be to flow the plaintiff’s land.”
In connection with this and other instructions, this court held that the instructions were as favorable to the defendant as the law would justify. “It was certainly no defense to the action that some other wrongdoer had contributed to produce the injury.”
In the Folsom Case the court applied the negligence doctrine as applicable to joint tortfeasors. The excessive flow of water from the dam was due to the wrongful act of the defendant. Such act was unquestionably the primary cause of the damage. Had the defendant exercised its rights of flowage lawfully no damage would have ensued, for the
' “If you find from the evidence that the bridge did have such an effect, then the company, after once learning that, with the bridge as it was, floods let out from their dams in greater volume or force than the natural flow of the stream were likely to overflow the plaintiff’s meadows, would have no right, as against the plaintiff, to let out such floods, and, if they did let them out, would be liable for damage thereby done to his land.”
From the latter quoted instruction it will appear that in the opinion of the trial court it was the duty of the defendant to anticipate that the overflow would take place as the result of its wrongful act, in view of the obstruction created by the bridge. Here we have two wrongful acts, neither of which alone would produce the damage, but which, operating in conjunction, produced the results complained of.
The acts of the defendant and those of the lower riparian owners can in no sense be deemed the acts of joint wrongdoers. Each act was separate, distinct, and independent from the acts of the others, and they were not performed at the same time but successively; neither were they committed as the result of a common understanding or agree-mént, and each act produced a definite and distinct result which could be separated and reasonably estimated from the standpoint of the resulting damages. This is made
In the Cook Case “a fire started by the defendant’s negligence, after spreading one mile and a quarter to the northeast near plaintiffs’ property, met a fire having no responsible origin coming from the northwest. After the union, fire swept on from the northwest to and into plaintiffs’ property, causing its destruction. Either fire, if the other had not existed, would have reached the property and caused its destruction at the same time.” (See head-note 1.) In that case it is said:
“Where the wrong of one person concurs with that of another, under such circumstances that the injury would not result without the concurrence, it is reasonable to hold each liable for the entire loss, because the same would not have occurred if the negligence of either were absent.” Page 641.
This is the doctrine substantially pronounced in the Folsom Case. The court says further in the opinion:
“Again, where two causes, each attributable to the negligence of a responsible person, concur in producing an injury to another, either of which causes would produce it regardless of the other, it is reasonable to say that there is a joint and several liability, because, whether the concurrence be intentional, actual, or constructive, each wrongdoer, in effect, adopts the conduct of his co-actor, cmd for the further reason that it is impossible to apportion the damage or to say that either perpetrated any distinct injury that'can be separated from the whole.” Page 642.
The foregoing quotation from the Cook Case brings out in bold relief the distinction between that case and the instant case. In the latter quotation it is said, in substance,
The Olson, the Pennell, and the Kausch Cases, cited and relied upon by the learned counsel for the plaintiffs, are typical negligence cases, involving joint tortfeasors, and where the acts of such tortfeasors occur at the same time and at substantially the same place. These cases are so radically different from the instant case and so readily distinguishable as to require no comment. We therefore conclude that the well-established doctrine in negligence cases, with respect to joint tortfeasors, is in no manner applicable to the instant case.
In the case of Farley v. Crystal Coal & Coke Co. (85 W. Va. 595, 102 S. E. 265) 9 A. L. R. 933, it was held that where “two or more persons who, acting separately and independently, have wrongfully cast in a stream coal, cinder, and other materials and polluted and defiled it, in consequence of which the property of a riparian owner has been injured and damaged, they are not jointly liable for the damages so wrought, nor is any one of them liable for such damages in their entirety.” The same court, in the case of Day v. Louisville Coal & Coke Co. 60 W. Va. 27, 53 S. E. 776, 10 L. R. A. n. s. 167, held the opposite doctrine. The court in the Farley Case, upon a review of the Day Case, says the following in its opinion:
“A careful examination of the opinion delivered in the case above referred to (Day v. Louisville Coal & Coke Co.) readily discloses failure on the part of the court to observe and apply a well defined and firmly grounded exception to the general rule of liability of joint tortfeasors given in the*369 opinion, or, stated more accurately, a limitation of the rule of joint liability and liability for entire damages. ThE exception or limitation is that there is no joint liability nor' liability for entire damages when the tortfeasors act independently, without concert, collusion, or common design, and the injury to the plaintiff is consequential only, or remotely resulting, as contradistinguished from direct and immediate. . . . An overwhelming weight of authority now stands against the decision in Day v. Louisville Coal & Coke Co., in so far as it authorizes a joinder of defendants upon the facts stated in the declaration in this case, and imposes liability of one of the parties for entire resultant damages, whatever it may have been at the date of the rendition thereof. [Citing numerous cases in a large number of jurisdictions.] It is equally clear that a well defined legal principle or exception to a general principle or rule which this court overlooked or misapprehended in the decision in that case stands against it. . . . Being clearly of the opinion that the decision in the Day Case is unsound in principle and contrary to' the great weight of judicial opinion, we disapprove and overrule it in so far as it imposes liability for entire damages upon one of several wrongdoers and authorizes a joinder of'defendants in an action for damages under the circumstances here shown.”
The action in the Farley Case was an action at law for the recovery of damages. In so far as the Farley Case disapproves'of a joinder of defendants in an action for damages under the facts existing in that case; it is in harmony with the decision of this court in the case of Lull v. Fox & Wis. Imp. Co. 19 Wis. 100. In a note to the Farley Case in the American Law Reports, supra, the general rule is stated that acts of independent tortfeasors, each of which causes some damage, cannot be combined to create a joint liability at law for damages. Decisions are cited to support this doctrine from thirteen states and from England and Canada.
The instant case has been commenced under the provisions of secs. 3180 and 3181 of the Statutes, and under the express provisions of these statutes an action may be begun in equity
It is our view, therefore, that the action as originally begun was maintainable, and that the order of the lower court in striking out the allegations as to damages with respect to the private corporations charged was erroneous. Had the action proceeded, the plaintiffs could have obtained their equitable remedy for the abatement of the nuisance; and,' upon the determination by the court of 'the -proportionate.share of the damage caused by each -of the defendants, were entitled to judgment for such amounts, thus disposing of the entire litigation in one action. To accomplish such a result is one of the principal functions of a court of equity.'
• It is claimed by plaintiffs’ counsel that, in making the motion to strike from plaintiffs’ original complaint the allegations with respect to damages in so far as it affected the private corporations joined as parties defendant, the defendant herein has placed itself in a position where it-cannot insist upon the assessment of separate damages, and that it is now liable for the whole damage, with the right of enforcing- contribution from the other alleged 'wrongdoers.
It is further contended by counsel for the plaintiffs that the acts complained of resulted both in a public and priváte
It is true that a nuisance may be both public and private, and that a public nuisance may also become a private nuisance as to any person who is especially injured by it to any extent beyond the injury to the public. It is public because of the danger to the public. It is private only because the individual, as distinguished from the public, has been or may be injured. 20 Ruling Case Law, 384. We have carefully examined the Indiana cases and the Alabama case above referred to, and we cannot approve of the logic of those cases. The Realty Company is the only party plaintiff claiming damages in this case. Its claim for damages. is not based upon the theory that the nuisance complained of is a public nuisance, but on the contrary it is contended, as it necessarily must, that as to it it is a private nuisance, and it is a private nuisance because damages are inflicted upon it which differ materially from those inflicted upon thé public. That the nuisance may also be public as to that portion of the public who are in the habit of resorting to Jackson Park for amusement or recreation purposes cannot in the least enlarge the Realty Company’s rights for damages or change in any respect the ordinary rule for damages with respect to a private nuisance. The number of cases holding this doctrine is very limited. There is no statement
Plaintiffs’ counsel have filed a cross-appeal, and contend in their brief that the damages awarded by the trial court are inadequate, and that the court evidently overlooked the undisputed evidence in the case. It appears that, in computing the damages, only forty-five acres of the land of plaintiff Realty Company were taken into consideration, and that the undisputed evidence in the case shows that the actual acreage sustaining damages amounts to sixty-eight acres, and, furthermore, the damages to the property of the Realty Company were limited to $43.75 per acre. The undisputed evidence shows that the minimum damages computed by experts on the entire acreage amounted to $50 per acre. With respect to twenty-three acres no damages whatever were assessed, and the evidence is undisputed that such twenty-three acres were damaged precisely as were the forty-five acres. Furthermore, nothing was allowed whatever for the rehabilitation of these twenty-three acres, and the testimony shows that it will require a minimum expense of $15 per acre for the rehabilitation of such twenty-three acres. Assuming, therefore, that the plaintiffs are entitled to recovery herein, the damages must be computed in accordance with the undisputed testimony, and under such testimony such damages should have been materially increased over and above the amount actually allowed. The action, however, having been tried upon the erroneous theory indicated by the opinion, the judgment of the lower court must be reversed.
Counsel for the city of Milwaukee, during the course of the trial in the lower court, ordered and were furnished with a daily transcript of the evidence, at an expense of $2,287.20, and they contend that the lower court erred in refusing to allow such expenditure in the bill of costs and disbursements. We are clearly of the opinion that the con-
By the Court. — Judgment reversed, and the cause is remanded with directions for further proceedings in accordance with this opinion.