279 N.W. 361 | Minn. | 1938
The short facts are these: Hader is a small hamlet in Goodhue county, this state, wherein defendant, organized as a coöperative company, built a cheese factory and started operating the same in September, 1920. A spring-fed rivulet or creek passes near the factory and then northerly and enters plaintiff's 42-acre farm about 1,000 feet below where defendant's drain enters it. The creek divides plaintiff's 20-acre fenced pasture in about two equal parts, thence meanders northerly some 16 miles, emptying into the Cannon river near Welch. In its course other branches or rivulets enter, and it is known as Belle Creek. Plaintiff's little farm has commodious buildings. It is the family home and is used as a dairy farm. Defendant obtains the milk for the factory from farmers living within a radius of about six miles of Hader. It is a growing industry, and an additional vat of about 8,000-pound capacity was *555 installed about ten years ago. The record gives the impression that the waste from the factory did not in the beginning cause much complaint, especially as long as the patrons on delivery of the milk took back the whey, as they are permitted to do, for hog and chicken feed. In a cheese factory as in a creamery much water with some cleansing ingredient is used. The disposal of the water after so used for cleansing purposes is a problem for every cheese factory and creamery. Where possible it is discharged as sewage in some run or stream. In the instant case a toilet discharges into the drain, but scarcely anyone other than the three employes of defendant makes use thereof. The evidence is clear that the whey is responsible for the sludge and noxious odor that emanates from and pollutes this stream. There is no evidence that the residue from the washings aside from the whey would in any manner pollute the stream or cause offensive odors when it reaches plaintiff's land. The evidence is convincing that when the whey was taken away by the patrons of defendant the nuisance on plaintiff's premises abated. At first, when the capacity of the factory was smaller and most of the whey was taken away by those who brought the milk, there was no complaint of any nuisance on plaintiff's farm. On this appeal defendant challenges (a) the jurisdiction of the court over the subject matter; (b) certain findings are assailed; (c) there is a claim of a prescriptive right to pollute the stream; and (d) that injunctive relief, which would destroy a lawful business to abate a trifling injury to plaintiff, is not warranted.
It is asserted that L. 1927, c. 273 (1 Mason Minn. St. 1927, §§ 5377-1 to 5377-6, inclusive), gave sole jurisdiction to the state board of health to administer and enforce all laws relating to the pollution of waters within the state and repealed by implication, if not in express words, 2 Mason Minn. St. 1927, § 9580, relating to the abatement of nuisances by the district courts. The statutes relating to the state board of health prior to the enactment of this chapter (L. 1927, c. 273) specifically provided that nothing therein should curtail the court's power to administer the usual legal and equitable remedies in case of nuisances or of improper interference with private rights. § 5377. The repeal provision of c. 273 does *556
not in terms repeal § 5377 of the code nor § 9580 thereof. Nor do we see any such inconsistency between the provisions of L. 1927, c. 273 (1 Mason Minn. St. 1927, §§ 5377-1 to 5377-6) and said § 9580 that the latter must be held repealed by implication. Harris v. Mackintosh,
No finding of fact is challenged except by this assignment: "The court erred in holding and deciding that odor alone could affect rental value of real estate." We think defendant's counsel misinterprets this finding: "That in the pools [of this creek] there settled whey floating or suspended in the water which emitted odors and made the waters offensive but that it was not such as to cause injury or death to cattle." The evidence is replete that the sludge from the rotting whey stuck to the bottom and sides of the creek and the rocks therein, making the water turbid, grayish, and repulsive in appearance in addition to emitting a very offensive odor. There was evidence that the stench from the creek on plaintiff's premises was perceived at a distance of over half a mile if downwind. However, offensive odors may sustain a recovery of damages. Johnson v. City of Fairmont,
An assignment of error is directed to the first conclusion of law, reading:
"That the discharge of sewage into said stream is a nuisance, that no prescriptive right to so deposit has been acquired."
Whether considering this as a conclusion of law or a finding of fact, it is of no avail to defendant. A prescriptive right to maintain a nuisance cannot arise unless the nuisance has continued in substantially the same way and with equally injurious results for the entire statutory period. Matthews v. Stillwater G. E. L. Co.
The main contention is that the injury to plaintiff being insignificant, only $63 a year in diminished rental value of the farm as found, an injunction should not issue which in effect prevents the operation of a large business of great value to the community. Decisions of high authority are cited and relied on by defendant, viz.: Sussex Land Live Stock Co. v. Midwest Refining Co. (8 Cir.) 294 F. 597; Harrisonville v. W. S. Dickey Clay Mfg. Co.
There are two conclusions of law, one declaring the discharge of sewage into the creek a nuisance (I) and the other declaring the discharge of whey into the same a nuisance (II). It appears that cheese factories and creameries use much water for daily cleansing of utensils and premises. Apparently the water so used comes from a well on defendant's premises. A cleanser or sterilizer is used with the water. An engine is used to operate the machinery employed. A drain in the engine room joins a drain from the factory proper, which carries the discarded whey and water used for cleansing to the creek. There is no evidence that any ingredient of the drain other than the whey materially affects either the natural appearance or odor of the stream. Plaintiff made no use of the water for household purposes. Between the place where defendant's drain emptied into the creek and where it enters plaintiff's farm it touches the lands of three other occupiers with barnyards and hogpens draining toward the creek. There is no evidence that these owners make unreasonable use of the stream, but it is self-evident that the creek does not reach plaintiff's land in its natural purity. It appears to us that the conclusion of law declaring a nuisance any other discharge into the creek than the discharge of the whey went further than justifiable under all the conditions. Directly discharging a toilet into a stream of this character, though only cattle use it for drinking purposes, is perhaps so improper that it should be enjoined, especially as it would be no great expense for defendant to provide a septic tank for the toilet. However, the discharge of whey upon plaintiff's premises and interfering by its stench and disagreeable appearance with plaintiff's proper enjoyment of her home and property justified the court in enjoining that nuisance.
The case is remanded to the court below with direction to amend the order for judgment in conformity herewith, and, as so amended, the order denying a new trial will stand affirmed, no statutory costs to be taxed. *560