156 P. 794 | Or. | 1916
Opinion by
. The evidence shows that Bear Creek, a non-navigable stream from which the defendant’s proposed irrigating ditch is designed to divert water, flows northerly through Jackson County. This stream receives the sewage of Ashland, Talent, Phoenix and Medford, and the street litter and compost of the latter city also are discharged by storm sewers into the creek. The rains and melting snow on the mountains keep up quite a volume of water in Bear Creek until the warm weather dries up that stream in most places, leaving, however, pools of stagnant water and sand and gravel bars, which places, by reason of the heat, cause the sewage and foul matter cast into the stream to become very offensive. The water in the creek usually becomes low in June of each year, and continues in that condition until about September, when the drought is broken. The defendant owns a series of ditches, which take water from Fish Lake, Four Mile Lake, and the surplus from the north and south forks of Little Butte Creek and from Antelope Creek. From these streams a sufficient quantity of water
1. It is contended by appellants’ counsel that to permit the filthy water from Bear Creek to flow in an open ditch across the plaintiff’s premises will at all times create such a stench as to render the atmosphere impure, producing sickness, and causing the contemplated diversion to become a nuisance, and, such being the case, an error was committed in dismissing the suit. Such anticipated consequences are denied by defendant’s counsel, who maintain that the intended diversion will be undertaken only when the water flowing in the creek is at a high stage, thereby carrying off through the ditch the sewage, which will be rendered innoxious by the then volume of the current; that the plaintiffs’ apprehension of injury is not sufficient to authorize equitable intervention, and, this being so, no error was committed as alleged. One of the cases relied upon by defendant’s counsel to support the legal principle last asserted is Esson v. Wattier,
Where, however, it appears from the evidence that water confined by a dam has produced malaria causing illness, a court of equity will intervene to prevent a continuance of the injury: Richards v. Daugherty, 133 Ala. 569 (31 South. 934). In that case it was decided that where the erection of dams, which affect the natural flow of a running stream, results in injury to the health of persons living in the vicinity, such obstruction constitutes a nuisance and may be abated by a suit in equity by a person the health of whose family is injured thereby, without waiting the trial of the issue of nuisance vel non by an action at law. “It is difficult,” says a text-writer, “to define just what degree of injurious influence must be reached in order to warrant the court in determining what circumstances constitute a nuisance. A mere tending to injury is not sufficient; there must be something actually ' appreciable, which of itself arrests the attention, that rests not merely in theory, but strikes the common sense of the ordinary citizen. The determination, however, of the question rests in sound judgment and
2. An excerpt from the brief of plaintiffs ’ counsel is, in our opinion, fully justified, and reads:
“The testimony herein of four physicians is to the effect that the ditch, if constructed, will menace the health'of the plaintiffs and community, and fourteen other witnesses assert it will be a nuisance by reason of irreparable injury and damage to plaintiffs’ property.”
3. Most of plaintiffs’ witnesses, who on direct examination had testified as to the offensive odor emanating from the pools and bars to be found in Bear Creek in the dry season, admitted on cross-examination that when the water on that stream was high they had not perceived such stench. Dave Phipps, one of the plaintiffs, however, who had lived near that stream many years, and evidently had a better opportunity than any other witness of observing the disgusting odor, testified that during the summers he was obliged to go to the mountains to avoid the prevailing foul atmosphere. He was asked:
“You have worked a great deal in and around Bear Creek there, haven’t you?”
He answered:
“Yes, sir.
“Q. You have been marketing sand and gravel, have you? c-
“A. Yes, sir.
“Q. You may tell the court whether or not the water of Bear Creek is foul and offensive at all times of the year.
“A. "Well, I won’t let my cow drink out of it for milk for my own use.
“Q. That did not answer the question. I want to know whether it is foul and offensive at all times of the year.
“A. I think so.
‘ ‘ Q. "When were you down in there getting gravel the last time?
*182 “A. Last Saturday [referring to the week preceding February 1, 1915, when the trial of this cause was commenced].
‘ ‘ Q. And what was the nature of Bear Creek at that time and in this sand and gravel that you got out of there?
“ A. Why, the odor is so bad it is pretty hard for a fellow to stay to shovel on a load where I was loading. ’ ’
This testimony is not contradicted in any manner, except by the cross-examination of the witnesses to which reference has been made. Though the contemplated open ditch may be used by the defendant only during the high water in the stream, when the volume recedes there will be found on the bottom and sides of the artificial conduit an accumulation of filth which, being exposed to the summer heat, must necessarily cause an offensive scent, not merely to be apprehended, but certainly to be expected, thereby creating an intolerable nuisance, the maintenance of which a court of equity will enjoin in the proposed manner of the use.
The defendant will therefore be restrained from prosecuting its actions at law against the several plaintiffs, except on condition of conducting the water in suitable and safe pipes from the proposed intake on Bear Creek to the ditch into which the water is to be discharged. In order to insure a faithful compliance with this requirement, it is ordered that the defendant give to the plaintiffs a good and sufficient bond, executed by some reputable bonding company, in the sum of $12,000, the probable cost of putting in such pipes, the bond to be approved by the court and. to serve as indemnity, in addition to the several sums to be awarded the plaintiffs in the condemnation actions. When the ditch is thus completed to the satisfaction of
The decree appealed from will be modified, and one entered here in accordance with the view hereinbefore expressed. Modified.