43 Kan. 404 | Kan. | 1890
This case was decided by this court on November 9, 1889, and the judgment of the court below was reversed, and the court below was directed to grant a perpetual injunction against the defendants, as prayed for in the plaintiff's petition. In due time a motion for a rehearing was filed in this court by the defendants; and that motion is now before us for consideration. The writer of this opinion must admit that he did not understand this case as well as he ought to have understood it when the judgment of this court was rendered; and it is now the opinion of the court that such judgment is to some extent erroneous, and that it must be modified and corrected. It in effect perpetually enjoins and restrains the city of Potwin Place, and all its officers and agents, and the contractor, from constructing or using their contemplated sewers anywhere or in any manner, and also from discharging any sewage of any kind whatever into the Kansas river, although such sewage might by comparison with the waters of the Kansas river be pure enough to tend to make such waters at that place very much purer than they now are. The plaintiff in this case, the Topeka Water Supply Company, is a private corporation, and its sole business is to procure water from the Kansas river, and furnish the same to the city of Topeka and to the inhabitants thereof for compensation. The principal defendant in the case, the city of Potwin Place, is a municipal corporation, a city of the third class, and the other defendants, except Rosen, are its officers; and Rosen is the sewer contractor. The object of the action, according to the prayer of the plaintiff's petition below, is to perpetually enjoin the defendants and their agents, employ6s and successors from constructing and using a system of sewers, and from discharging sewage into the Kansas river above the plaintiff's wells. The case was tried before the court below without a jury, and that court made voluminous findings of fact, and upon such findings rendered judgment in favor of the defendants and against the plaintiff, denying to the plain
It appears from the findings of fact made by the court be
“Sec. 10. Said company binds itself, during the continuance of the contract which may be made under this ordinance, to furnish at all times for public and private use of said city and the inhabitants thereof, a full and sufficient supply of good, clear, healthful and wholesome water, well suited for domestic and manufacturing purposes.”
“Sec. 16. Any failure on the part of said company to comply with any of the provisions of this ordinance, either as to the amount of water or the quality of the same, or any failure to furnish a sufficient supply of water at all times, excepting in cases of unavoidable accidents, said company shall forfeit its franchise, and this charter shall be null and void.”
The Topeka Water Supply Company has no right or privilege, and none has ever been granted to it, to furnish any other kind or character of water to the city of Topeka, or to its inhabitants, than the water described in the foregoing provisions of the ordinance. According to the findings of the district court, the Water Supply Company obtains its water from the Kansas river, both directly and indirectly. It obtains it by means of an iron pipe extending from one of the supply wells out into the river and into the flowing stream, and all the wells are connected by means of iron pipes; and it also obtains water by means of the same percolating from
“The water fed into said wells from the bottom thereof is of the same kind and character as that in the flowing stream of said river above said bed of sand, except the changes that are caused therein by means of the filtration through the sand.”
The court below also made the following special findings of fact:
“13. That notwithstanding the drainage from said the city of Potwin Place or from other sources, is discharged into said the Kansas river in the manner above stated, the said wells belonging to and used by the plaintiff for supplying the inhabitants of the city of Topeka with water for domestic use and purposes, the said wells above described cannot be supplied with good, wholesome water, well suited for domestic purposes, from the Kansas river at said wells, or at any point within two or three miles above said wells; that the topography of a large portion of the territory included within the corporate limits of the said the city of Topeka lying west of Kansas avenue in said city and south of said Kansas river, is and always has been and always will be such that the drainage outlet of an area of about 600 acres on which reside not less than 15,000 inhabitants, and which number is rapidly increasing, and said drainage is caused by surface and underground drainage to flow into said river in close proximity to, and principally above said wells, and all within the drainage area of said wells; that immediately adjacent to and west and southwest of the corporate boundaries of the city of Topeka, and lying south and west of the city of Potwin Place, within three years numerous and large plats and additions and suburbs to said the city of Topeka have been laid out, and are being rapidly built up for residence of families and other purposes, aud many hundreds of houses, including a large hospital, several churches, stores and school-houses have been erected, and many more are in contemplation and progress of construction, and will in the near future be erected and occupied; that said platted territory last above described, outside of the city of Potwin Place and outside of the corporate limits of the city of Topeka, includes more than a thousand acres of land, all*412 platted into town lots, and designed to have houses erected on and occupied as residences and for various other purposes; that about 400 houses have been erected on said tract during the last three years, and are now being occupied; that the natural drainage from all the said territory finds its way into the Kansas river above and near the wells of the Topeka Water Supply Company, by surface drainage and underground drainage known as ground-water, and by following through the sand and gravel finds its way into the wells of the Topeka Water Supply Company, by the laws of natural drainage, and tends to pollute the water in the upper and lower currents in the Kansas river at and above said wells.
“14. That less than two and one-half miles above said wells of the Topeka Water Supply Company, and on the south bank of said Kansas river, are located the buildings of the Kansas insane asylum, which buildings are constantly occupied by more than seven hundred inmates, etc.; that all the sewage of said buildings and the premises connected therewith flows constantly through a large sewer or pipe into the Kansas river, which tends to and does pollute the water in said river; that said asylum buildings were erected and occupied, and said sewer therefrom was used as aforesaid in 1879, and before said Topeka Water Supply Company was organized, and have been in constant and uninterrupted use ever since.
“15. That on the north bank of the Kansas river and above said wells is a large slaughter-house and several manufacturing establishments, and several thousand people have erected and occupy many houses on and near the north bank of said river; and said portion of the city of Topeka has no system of sewerage whatever, and the said portion of the city is growing rapidly in a western direction.
“16. That all these facts were known to the said city of Topeka and the saidTopeka Water Supply Company previous to the purchase of the real estate herein described and the construction and erection of its buildings, wells, etc., aforesaid by said the Topeka Water Supply Company.”
The principal ground, at the present time, upon which the plaintiff founds its right of action, is the proviso attached to § 3, of chapter 232 of the Laws of 1889. It is said that this proviso was procured to be enacted by the legislature especially for the purpose of affecting this very case, which case was then pending in the district court of Shawnee county. Now
“Provided, That no sewer shall be permitted to empty into any stream from which a water-supply is obtained within three miles above the point where said water supply is obtained.”
Now this proviso does not purport to give to any person or corporation, public or private, any cause of action, and therefore, notwithstanding this proviso, we shall have to resort to the general principles of law and equity in order to determine whether the plaintiff has any cause of action or not, under the facts of this case. It must be remembered that the plaintiff in this case is a private corporation, and not the state of Kansas, or any public officer who has any authority to represent the state. It also obtains its water from a navigable stream, whose waters it does not own and cannot own until it separates them from the stream. (Wood v. Fowler, 26 Kas. 682.) And while it owns the land adjoining the river and up to the margin of the stream, yet it does not obtain or use the water which it obtains from the river, as a riparian proprietor. It is simply a corporation, that cannot drink, nor use water for any domestic or household purpose, nor use it to supply any natural want, and it does not use it as an incident to some primary use of its real estate, and indeed it does not use it under any riparian right, but it uses it merely for the purpose of carrying it away' from the stream across its land and into the city of Topeka and there selling it to others for compensation. This is not a use of the water under riparian rights. (City of Emporia v. Soden, 25 Kas. 588, 606, 607.)
But above all, and worse than all, according to the findings of the court below, it is itself a wrongdoer, violating its contract with the city, violating the city ordinance, and violating duty and obligation, by furnishing water to the city of Topeka and to its inhabitants which is unfit for use. Now
“It is true I will not be injured by your wrongful act or acts, provided I do right myself, but I do not intend to do right. I expect to violate duty, obligation, contracts, the city ordinances, and to infringe upon the dearest and most valued rights of others, and by so doing I expect, if you do not interfere, to reap great though reprehensible advantage; but if you do interfere, it will prevent me from reaping this much-coveted and contemplated advantage, and therefore, as you are an expected and intended wrongdoer as well as myself, you should be restrained from the commission of your contemplated wrongs in order that I may commit mine.”
Under the findings of the trial court the Topeka Water Supply Company may, if it chooses, obtain reasonably good water by going further up the river to a place above Potwin Place, above the insane asylum, and getting its supply of water there; but, according to such findings, it cannot obtain good water from the place from which it now obtains its supply. If it should go above Potwin Place and there obtain its water, then no act or acts on the part of Potwin Place could possibly do it any harm, and according to the findings of the court below it cannot obtain good water below Potwin Place; and at or above the place from which it now obtains its water. It can there obtain only such water as is unfit for use, and by obtaining the same there and furnishing it to the city of Topeka and to the inhabitants thereof, it not only does wrong, but it also violates its contract and violates the city ordinance. Will a court of equity encourage any such thing? Such would be a violation of some of the best established maxims