193 Ky. 85 | Ky. Ct. App. | 1921
Opinion of the Court by
Affirming.
The appellee, Maysville Water Company, which was incorporated in 1879 and installed its plant and began to furnish water to the city of Maysville in 1880, and has since been at all times and is now so engaged, brought this action in the Mason circuit court on the 21st day of May last, praying an injunction restraining EL P. Purnell, as judge of the Mason county court,, from proceeding
No provision whatever was made by the ordinance for sedimentation, filtration or chlorination of the water and no arrangements were made by the water company for the clarification or purification of the water except as provided in that part of the ordinance quoted above. At a later date arrangements were made by the water company for the treatment of the water supply with liquid chlorine and the water was taken from wells or shafts near the river’s edge and not from the river, so that the water percolated through the soil or earth into the wells or shafts, and was somewhat clearer and freer from germs harmful to the human organism.. Thereafter the State Board of Health, having become convinced that the water
‘ ‘ Gentlemen:
“Having been duly advised by the county health officer of the existence throughout the past year of numerous cases of typhoid fever, an epidemic and communicable’disease, amongst persons furnished with water by you within the city of Maysville, in Mason county,'Kentucky, and having caused an investigation to be made by Captain C. N. Harrub, of the United States Public Health Service, who is acting state sanitary engineer of the state of Kentucky, the results of which were published in the bulletin of the State Board of Health, vol. ix, No. 5, dated July, 1919, copy of which is attached hereto.
“Now, therefore, be it known, that the State Board of Health of Kentucky, being fully advised, hereby notifies you that repeated analyses of the water furnished by you to the people of Maysville show it to be a nuisance, source of filth and cause of sickness, and you are requested within forty-eight hours from the service hereof to ameliorate the same by 'Causing such water to be treated with liquid chlorine so that the filth therein may be rendered less harmful to the consumers thereof, and, further, you are requested within 120 days from the service hereof to install such sedimentation basin or basins, filter and chlorination plant as will, when and if the plans for which, approved by the state sanitary engineer in writing, abate and remove the said nuisance, source of filth and cause of sickness in the piesent water supply of the said citv of Maysville. ’ ’
The company was making, or soon thereafter made, quite a number of improvements in its plant looking to the purification and betterment of the water supply for the city, but it did not install, as directed by the notice of the board of health, a filtration plant, but it did provide an efficient chlorination plant and also arranged sedimentation basins, so that its water was not only clear and good in appearance but was free from bacteria in such number as to he harmful and dangerous to human beings, and at the same time was pleasant to the taste and good for domestic purposes. Before these improvements were completed and after the lapse of more than one hundred and twenty days from the giving of the notice by the- board
The evidence is long but contains few contradictions. With it are filed a number of exhibits, bottles of water taken at different times and from different faucets connected with the appellee water company’s system, showing more or less matter in solution. While the water furnished by the company to the city and its inhabitants was muddy and impure at different times from the installation of the plant in 1880 until after the institution of the criminal prosecutions mentioned above, it is admitted by the parties and satisfactorily proven in the evidence that the water supplied by the appellee company to the city of Maysville and its inhabitants at all times since February 1st last and at the time of the institution of this action and now is not only clear and free from sediment but is pure and wholesome and suitable for the purposes for which it is used by the city and its said inhabitants. It will be noted that the order of injunction granted by the lower court is specifically confined in its effect to restraining and enjoining the judge of the Mason county court and the board of health, their agents and officers, from further prosecuting the pending warrants against the water company and from instituting new prosecutions against said company to compel it to install said filtration plant, but it does not enjoin or restrain the defendants