145 P. 1047 | Utah | 1915
Lead Opinion
Salt Lake City, a municipal corporation, the appellant here, filed a complaint against the defendant, respondent here, charging him with having violated the provisions of the following municipal ordinance, to-wit:
“Sec. 821. It shall be unlawful for any person to construct or maintain any corral, sheep pen, pig pen, chicken coop, stable or other offensive yard or outhouse along any stream of water used by the inhabitants of Salt Lake City, anywhere within ten miles above the point where said stream is taken by said city, where the waste or drainage therefrom will naturally find its way into said stream of water; or to deposit, pile, unload-or leave any manure, or other offensive rubbish, or the carcass of any dead animal along any stream of water used by the inhabitants of Salt Lake City, any*351 where within ten miles above the point where said stream is taken, where the waste or drainage therefrom will naturally find its way into said stream of water; or to drive, or • to permit, or cause any other person to drive any loose cattle, horses, sheep or hogs through any canyon from the stream of which water is or shall be taken for the use of the inhabitants of said city, or to permit any cattle, horses, sheep or hogs to remain in or near, or to pollute any stream of water used by the inhabitants of said city anywhere within ten miles above a point where said water is first taken by said city.”
Said ordinance was passed pursuant to Comp. Laws 1907, subd. 15, section 206, which confers certain powers upon the city, and which, so far as material here, is as follows:
‘ ‘ To construct or authorize the construction of waterworks, without their limits; and for the purpose of maintaining and protecting the same from injury and the water from pollution, their jurisdiction shall extend over the territory occupied by such works; and over all reservoirs, streams, canals, ditches, pipes, and drains used in and necessary for the construction, maintenance, and operation of the same, and over the stream or source from which the water is taken, for ten miles.above the point from which it is taken; and to enact all ordinances and regulations necessary to carry the power herein conferred into effect.”
There is a proviso to this statute requiring the city to provide a “highway” extending through the limits of its jurisdiction, as stated in the statute, on which cattle, horses, sheep, and hogs may be driven.
The complaint, omitting the formal parts, charges the offense in the following terms, to-wit:
“That the said defendant, Seymour B. Young, Jr., being then and there the owner and in possession of that certain tract of land of approximately fifteen acres through which runs that certain stream of water in Parley’s canyon known as Parley’s creek, at a point within 10 miles above the point where said stream of water is taken by the City of Salt Lake for the use of the inhabitants of said city, to-wit, 6 miles above said intake of said city, unlawfully and willfully did then and there and continuously for 10 days and more prior*352 thereto, permit 27 horses to pollute said stream of water by permitting said horses to be at all times accessible to said stream and to pasture upon and along the banks of the same, and to wade in and to drink from the same, and to drop their dung into said creek, and to run at large upon said tract of land where the waste and drainage therefrom naturally finds a way into said stream, contrary to the provisions of section 821 of chapter 29 of the Revised Ordinances of said Salt Lake City, in such cases made and provided.”
The respondent demurred to> the complaint, setting forth seven distinct grounds why the complaint should be held insufficient. About all of the grounds may, however, be considered under the head that the complaint is defective in substance in that the facts therein alleged do not ! ‘ constitute a public offense.” The district court sustained the demurrer and entered judgment dismissing the complaint and discharged the respondent. The city appeals and seeks a reversal of the judgment on the ground that the court erred in sustaining the demurrer and in entering judgment dismissing the complaint.
The questions presented for decision may be more easily understood by giving respondent’s reasons why the demurrer was properly sustained, and henee I shall follow that course. Those reasons, as I understand respondent’s counsel, in subr stance are: (1) That the ordinance in question is “not authorized by any law or statute of the State of Utah”; (2) that said ordinance violates article 1, section 7, of the Constitution of this state, which provides, “No person shall be deprived of life, liberty, or property without due process of law”; (3) that it also violates section 22 of article 1 aforesaid, which provides, “Private property shall not be taken or damaged for public use without just compensation”; (4) that said ordinance also- violates section 1 of the fourteenth amendment to the Federal Constitution; and (5) that subdivision 15 of section 206 (which I have set forth above) is void because it is in conflict with the several constitutional provisions referred to above. It is only fair to state that counsel concede that both the ordinance and statute admit of a construction
“Whatever is dangerous to human life or health, and whatever renders soil, air, water, or food impure or unwholesome, are declared to be nuisances and to be illegal, and every person, either owner, agent, or occupant, having aided in creating or contributing to the same, or who may support, continue, or retain any of them, shall be deemed guilty of a misdemeanor. ’ ’
See Laws Utah 1899, p. 66.
The violation of the foregoing section constitutes a misdemeanor, and, in addition to the right of an action by an individual, the board of health is also authorized to abate such a nuisance. Again, by Comp. Laws 1907, section 4274, the befouling of the “waters of any stream, well, or spring of water used for domestic purposes,” in the manner in that section defined, is declared a nuisance: It is apparent therefore that the Legislature of this state has exerted the police power of the state in different ways for the purpose of protecting and maintaining the natural purity and wholesomeness of the 'waters flowing in the streams of this state. The reason why such great care is manifested by the Legislature to maintain the purity of our streams may perhaps he attributed to the fact that this state lies wholly within the arid belt, and for that reason the common law may have been deemed insufficient to afford adequate protection. Moreover, the common-law rule that waters may not he appropriated and diverted from a stream has been entirely abrogated in this
Nor do I think that the contention can be sustained that the statute and ordinance both are, or that either of them is, void because they or either is violative of the. constitutional provisions upon which counsel rely and to which reference has been made. It is universally conceded by both courts and text-writers, that, in enacting statutes and ordinances such as those in question here, the legislative bodies, whether state or local, are exerting the police power which inheres in every sovereign state. In exerting the police power to protect the general health or welfare of the inhabitants, or in directing its exercise by the municipality for such purpose, the state is exerting one of the greatest prerogatives of sovereignty. Indeed, this power is considered of such vast importance that the sovereign is not permitted to surrender it or to be estopped from exerting it at any and all times when the public interests require its enforcement. And this is so although its exercise may interfere with property or property rights, or, under certain circumstances, may even cause the destruction of the same. ,The attempt to define this power has so often been made by the most able jurists that it would smack of pedantry for me to attempt it here. Perhaps as good and as compre-
“It belongs to the legislative department to exert the police power of a state, and to determine primarily wbat measures are appropriate and needful for the protection of the public morals, the public health, or the public safety.”
Again, in Bland v. People, 32 Colo. 319; 76 Pac. 359; 65 L. R. A. 424; 105 Am. St. Rep. 80, in referring to this subject, the court says:
“It is said that the police power of the state is founded largely upon the maxim: ‘Use your property in such manner as not to injure that of another.’ ”
It is further said:
“ ‘The welfare of the people is the supreme law,’ is a maxim of the law; and it is upon these two maxims that the police power of the state is largely based. In the exercise of the police power, the Legislature has a large discretion, and it is our duty to sustain such legislation unless it is clearly and palpably and beyond all question in violation of the Constitution.”
By applying these rules of construction to the ordinance in question, I think the objections that are inveighed against it by respondent’s counsel largely disappear. For instance, it is contended that to prohibit cattle to be near a stream is too vague and uncertain to admit of reasonable enforcement. It is true that by segregating the phrase referred to from all other matter contained in the ordinance it appears to be somewhat obscure. But the manifest purpose of the whole ordinance is to prevent the pollution of water which is used for domestic purposes. With that thought in view, therefore, all acts wRich directly tend to affect or destroy the potability of the water flowing in our streams are prohibited. A careful reading of the ordinance makes clear that it was not intended to prohibit the mere casual straying of one or a few head of cattle, horses, sheep, or hogs along or near a stream. What the ordinance prohibits is “to permit any cattle,” etc., “to remain in or near” the stream. It requires no argument to show that the prohibition is not against one, but it is against a number of cattle, and it is not directed against a mere incidental or casual straying into or near the stream, but what is prohibited is to permit a number of cattle, etc., to remain in or near the stream. To permit a number of cattle to remain in a stream must necessarily result in polluting the water for domestic use, and to permit them to remain at one place for any considerable length of time near the stream, where the accumulating filth naturally produced by them can drain into it, must unavoidably have the same effect. The filth and excrementitious matter coming from a number of animals, or even from one, if permitted to accumulate and get into the stream, must result in its pollution.
Again, the ordinance must receive a reasonable construction and application. Such a construction simply prohibits the owner of any cattle, etc., from permitting them to be so near a stream, whether it be ten or one hundred feet, or more
This brings me to the crucial question in the ease; Respondent’s counsel contend that the complaint discloses that he is to be punished for doing or permitting a lawful thing upon his own land in the usual and customary manner, namely, the pasturing of his horses thereon. It is alleged in the complaint that the stream in question “runs through” respondent’s land. He insists therefore that he is a riparian owner with all the rights and privileges incident to such ownership. Upon these premises his counsel insist that he at least has the legal right to make a reasonable use of his land and the acts, charged do not show that he has abused that rig'ht. Indeed, they contend that the very acts charged merely show a reasonable and not an unreasonable use. Counsel have cited one ease, namely, Helfrich v. Catonsville Water Co., 74 Md. 269; 22 Atl. 72;
“Whether the use to which he (the owner) wishes to devote it (the property) is reasonable must be determined by the circumstances.” Ferguson v. Firmenich Mfg. Co., 77 Iowa 576; 42 N. W. 448; 14 Am. St. Rep. 319.
To- arrive at a just result, therefore, not only the loedi conditions and circumstances surrounding the locus in quo must be kept in mind, but, in my judgment, conditions generally prevailing throughout the state, or, at least, throughout the locality where the stream is located, and the uses to which the water flotving therein is applied, must also be considered.
Again, the doctrine laid down by Judge Cooley, in his excellent work on Constitutional Limitations, 7th Ed. 880, may also be important. It is there stated in the following words:
“So a particular use (or disposition) of property may sometimes be forbidden, where, by a change of circumstances, and without the fault of the owner, that which was once lawful, proper,' and unobjectionable has now become a public nuisance, endangering the public health or the public safety.”
The question is discussed by Mr. Justice Peckham, of the New York Court of Appeals, in the case of Health Department v. Rector, etc., 145 N. Y. 32, 42, 43; 39 N. E. 833, 836, 837 (27 L. R. A. 710; 45 Am. St. Rep. 579). It is there said:
“Within this reasonable restriction the power of the state may, by police regulations, so direct the use and enjoyment of the property of the citizen that it shall not prove pernicious to his*360 neighbors or to the public generally. * * * Laws and regulations of a police nature, though they may disturb the enjoyment of individual rights, are not unconstitutional, though no provision is made for compensation for such disturbances. They do not appropriate private property for public use, but simply regulate its use and enjoyment by the owner. If he suffer injury, it is either damnum absque injuria, or, in the theory of the law, he is compensated for it by sharing in the general benefits which the regulations are intended and calculated to secure. (Citing cases.) The state, or its agent in enforcing its mandate, takes no property of the citizen when it simply directs the making of these improvements. As a result thereof, the individual is put to some expense in complying with the law, by paying mechanics or other laborers to do that which the law enjoins upon the owner; but, so long as the amount exacted is limited as stated, the property of the citizen has not been taken in any constitutional sense without due process of law.”
Therefore, whenever in this opinion I refer to a “reasonable use, ’ ’ I refer to one which is not of itself a nuisance or which does not unnecessarily and appreciably pollute the waters of a stream. Further, that if in using-property a stream is necessarily polluted and such pollution can be avoided without destroying the owner’s ability to use the property, he must take reasonable steps and precautions to avoid such pollution, and, if he willfully or negligently fails to do- so, he may be punished for his acts. Any use which results in an appreciable pollution which is preventable by incurring reasonable expense or making reasonable effort cannot be deemed a reasonable use for the purpose of withstanding the enforcement of a police regulation which is intended to protect the public health.
But in answer to all this respondent insists that he is not charged with maintaining a public nuisance. Whether he is or not, as I shall endeavor to- point out hereafter, is not controlling here. The real question is whether the use made by respondent of his land is a reasonable one under all the circumstances and within the purview of the rule heretofore laid down. What use is it that respondent makes of his land, and under what circumstances is it applied? The amount of land owned by him and on which it is alleged he keeps twenty-seven head of horses is so situated that the stream in question runs
In view therefore that the stream divides the piece of ground, the horses at times must necessarily go from one side of the stream to the other to feed. In order to prevent the horses from polluting the stream by depositing their filthy excrement therein as charged in the complaint, they must be kept out of the v'ater, and this I shall assume can be only done by erecting two fences, one on each side of the stream, with a fenced passageway which will permit the horses to pass from one side of the field to the other at will, or, by putting up bars through which they may be led or driven by some one from one side of the stream to the other as- aforesaid. Assuming therefore that fences will have to be erected for the full length of the land the combined length of such fences will be about one hundred rods. In connection with this, some passageway must be devised for the horses to cross over the stream if they are to be kept entirely out of it. And in addition to the foregoing, some method by which water is provided for the horses to drink must also be devised. These things are so simple and in such general use that I may take judicial knowledge of the fact that their cost is, to say the least, not prohibitive, and, in view of the end to be attained, clearly not unreasonable. Will any one seriously contend that in this day and age it is necessary or even reasonable to permit twenty-seven head of horses, or any other number, more or less, to gO' into a stream and to deposit their filthy excretions
I have devoted an unusual length of time an an unusual amount of labor to find some case in the boobs wherein it has been held that merely to inconvenience a landowner to the extent herein suggested, for the purpose and under the circumstances here present, constitutes a taking or confiscation of property; but I have found none. Moreover, the eases I have cited all squarely hold that a landowner cannot complain because he is inconvenienced in the use of his property, where such inconvenience arises out of the proper enforcement of the poliee power to protect the public health, and where such enforcement does not amount to the taking or destrmction of his property. If such were not the law, communal life in this arid country would be well-nigh impossible. All the streams would be polluted and the use of the water made unwholesome, if not absolutely dangerous to health, by what is termed to be a reasonable use. Further, if the purity of the streams could only be maintained by compelling the cities and towns of this state to condemn the land along such streams, it would be necessary to condemn practically the whole watershed of the streams. This would be as impossible
The respondent insists that under the ordinance in question he cannot permit any of his horses to remain on any part of the land for the purpose of eating the grass growing thereon, since in doing so they still will void their excrement on the land, which, in ease of rains and floods, will be washed into the stream. It no doubt is true that where there are filthy substances deposited along the sides of the canyons — and most of our streams flow through canyons — such substances, in ease of rains, will, to some extent at least, be washed into the stream; but this is unavoidable. To permit cattle, however, or horses to deposit their excrement on the land while they are grazing all over it from day to day is one thing, while to permit them to go into the stream and to deposit it into the water, or to permit them to deposit it in any quantity near the stream where it will be directly washed into it, is quite a different thing. The cattle wander over the land during the summer season, and that is the only season in which they can be pastured, eating grass, and in doing so never deposit a very large mass of excrementitious matter in one place, but in the natural order of things will scatter it over an entire field or pasture. With regard to such deposits, the magic influence of sunlight and air which bring about chemical decomposition must not be overlooked. Most of the offensive gases escape under such conditions, and as pointed out by Vice Chancellor Stevens in the case of Doremus v. Paterson, 73 N. J. Eq. 483; 69 Atl. 225, where the question no-w under consideration is exhaustively treated, only the solids or the mineral portions of the excrementitious matter eventually find their way into the
Recurring now to the claim made by counsel that respondent is not charged with committing a nuisance. It is true that such is not the direct charge, but can it be said that to permit twenty-seven horses to go into a stream each day during the summer season, and to permit them to deposit their filthy excrement into the water flowing therein which is being used for culinary purposes by the inhabitants of a large city, if not a nuisance per se is, nevertheless, near the border line of constituting a very offensive one! If respondent, however, were either actually committing or maintaining a nuisance, he would not have any standing in court whatever. His counsel frankly concede that if he -were guilty of maintaining a public nuisance it could be abated, and this, too, without considering whether the abatement would injuriously affect him in his property rights or not. But they strenuously insist that what is charged does not amount to a nuisance. Let me say here, once for all, that statutes and ordinances such as are in question here do not depend for their enforcement upon the question of whether the acts that are prohibited thereby constitute a nuisance or not. If such acts constituted a nuisance, the parties charged, if the acts came within the statute or ordinance, would be guilty as a matter of course, but they may also be found guilty although the acts do not, as yet, amoúnt to a nuisance. If respondent were guilty either of committing or maintaining a nuisance, the city, under the common law, as a mere riparian owner, could require him to abate the same, or the board of health might do so. In either case it would be wholly unnecessary to have recourse to an ordinance like the one in question. Such ordinances are not enacted to prohibit the maintenance of existing nuisances ; but their enforcement is intended to prevent the creation of nuisances which may become dangerous to' the public health. If no one could be prevented from polluting water until his acts amounted to the committing or maintaining of
Whether respondent has violated the provisions of the ordinance in question or not is a question of fact. He cannot be found guilty under the charge preferred against him unless it is found beyond a reasonable doubt that he has permitted the acts complained of and that such acts sensibly or appreciably pollute or have polluted the stream. The pollution must be one which constitutes an appreciable befouling of the water, because in the very nature of things it was not intended to punish for a mere technical contamination or pollution of water. Such a pollution is not preventable. Impure, noxious, or offensive matter cast into a stream, however small in quantity, to some extent pollutes the water therein. That, however, is not the pollution which ordinances like the one in question seek to prohibit or punish. On the other hand, such ordinances are intended to preyent, the deposit of filthy substances in or near our streams, which, if continued, might seriously endanger the public health. These ordinances are also intended to prevent individuals, by independent action, from polluting streams, although their acts cannot be construed as amounting to a nuisance. If the courts should refuse to enforce such ordinances, then each one of a number of individuals acting independently who own lands along a stream might pollute it, but not to such an extent as to constitute a nuisance, while the combined acts of all would so pollute the water of a stream as to make its use dangerous to health, and yet none could be punished, because the individual and independent acts taken singly would not so pollute the stream as to constitute a nuisance or make the use of the water necessarily dangerous to health.
I desire to add here that in the nature of things it is not possible for me to say, upon this1 demurrer, whether respondent is so affected in the use of his land as to amount to a taking as he contends. From the face of the complaint, no
I am constrained to hold therefore that, for the reasons stated, the ordinance in question is not invalid; that the statute on which it is based is a valid statute; and that the complaint states sufficient facts to constitute a public offense.
The judgment of the district court is therefore reversed.
Concurrence Opinion
(concurring).
It undoubtedly was within the province of-the Legislature to confer power upon municipalities by ordinance -to protect waters of streams used by the inhabitants thereof for domestic and culinary purposes, and to prevent pollutions of such waters. Whether the ordinance in question, in all its parts, is within such conferred power, need not, as I view the matter, be now considered or determined. It is sufficient to ascertain, and the inquiry need be no broader, as to whether the acts or wrongs alleged in the complaint are such ks the municipality under its conferred power could and did by ordinance forbid and penalize. Certain it is that a municipality; by ordinance, under the conferred power, may forbid and prevent pollutions, and punish those committing them, which result from an unlawful, wrongful, negligent, unreasonable, or unnecessary use of, or interference with, such waters, or of premises through which they course or are adjacent to them. Whether the municipality under such conferred power may also forbid and prevent pollutions — a very flexible and comprehensive term, for any feces or refuse getting in the water of a stream may, in a degree, constitute a pollution — and pun
Concurrence Opinion
I concur. I am of the opinion that the complaint is not vulnerable to the objections urged against it. That the Legislature may confer upon municipalities the power generally
There may be, and no doubt are, instances where parties, at an early date in the settlement of this arid mountain region, homesteaded tracts of these lands and have fenced and otherwise improved the same, and have occupied and used the lands for raising hay, pasturing, grazing, and corralling cattle, horses, and other domestic animals, and have used the waters rising thereon and that flow through the premises1 for irrigation, culinary, and domestic purposes, before parties lower down on the stream acquired any interest in or title to the water. In such case, the homesteader and his successor in interest may, after a municipality acquires a right to the water, after it leaves the premises, for the use of its inhabitants, continue to make a reasonable use of the land for the purposes mentioned. He may farm the land, pasture, graze, and corral horses, cattle, and other domestic animals thereon,
It is suggested that in the case at bar respondent might at a nominal expense construct a fence along either side of the creek where it passes through his land, and thereby protect the stream from the pollution mentioned in the complaint. As I have stated, it is common knowledge that the meadow, pasture, and arable lands in the canyons through which these streams of water flow is limited to small tracts situated along the beds of the canyons. In many instances this land consists of narrow strips on either side of the creek. There may be, and no doubt are, instances in which the homesteader, in order to include in his entry as much of this tillable land as possible, has “taken up” — ’filed on — -two, three, or more contiguous “forties” along the bed of the canyon. In such ease the homestead may consist of a tract of land eighty rods in width and 320 rods (one mile) in length. Under these conditions, it would require two miles of fence to prevent the loose animals kept on the ranch from going into the stream at will. To construct and maintain such a fence would not only be expensive to the homesteader, but in many cases the fence would very materially impair the usefulness of the ranch and thereby de
What I here state is in no sense in conflict with the case of People v. Burtleson, 14 Utah 258; 47 Pac. 87. In that case the defendant was convicted of having committed a public nuisance by unlawfully and willfully driving, herding, and keeping about 2,000 sheep upon a small stream of water which was used by the inhabitants of a small town or village. The record in that ease, what there is on file in this court, shows that the defendant was herding and grazing his sheep on the public domain' at the time he committed the nuisance for which he was' convicted.
I do not wish to be understood as holding that a party may go upon the public domain and acquire title to land through which a stream of water flows that is being used by the inhabitants of a municipality for culinary and domestic purposes and make any use of the land that will result in befouling the water. Nor do I wish to be understood as holding- that in cases where a party, or his predecessor in interest, was the first to locate on a stream of water and acquire title to land through which it flows, and later other parties lower
Whether the respondent is within his rights in pasturing horses in the inclosure through which the stream of water in question flows depends on the circumstances and conditions under which he is using the land for that purpose. Of course, if he willfully and wantonly permits twenty-seven or any number of horses in his pasture to wade into the stream at will and befoul the water under conditions that would enable him at a nominal expense and with but little inconvenience to protect the stream from pollution, he is amenable to the ordinance under which he is being prosecuted, regardless of whether his right to pasture his land antedates the right of the municipality to the use of the water.
