154 N.Y.S. 1046 | N.Y. Sup. Ct. | 1915
This is a suit in equity to enjoin the city of Niagara Falls and its board of water commissioners from discharging the waste effluent from the municipal filtration plant into the Niagara river above the intake of the Niagara Falls Power Company, from which as lessee the plaintiff receives and distributes
The evidence tends to show that the quantity of this discharge from the filter beds for the year 1914 was 95,176,800 gallons, or an average of about 260,000 gallons per day, and that the average amount of suspended matter, not including solids in solution, in "this effluent from the filter beds was from 4.56 tons to 8.9 tons per 1,000,000 gallons, and that the defend
There is a trunk sewer in Buffalo avenue adjacent to the filtration plant of the defendants into which the effluent from the filtration plant could be discharged as conveniently and with no greater expense than into the river, for the bed of the sewer is upwards of two feet lower than the average level of the water in the river at the point of discharge. It is necessary to use pumps, which are installed for that purpose, to completely drain the sedimentation basins through the discharge into the river, and the use of the pumps would not be required to as great an extent to drain the sedimentation basins into the sewer, from which
The principal material conflict in the evidence is between the chemists called by the respective parties, and in determining the issues presented by such conflict I accept the testimony of the chemists called by the plaintiff, not, however, upon the theory that the witnesses for the defendants are not entitled to credit, but upon the ground that the witnesses for the plaintiff have had greater experience and their tests were shown to be more reliable in that they tested the acidity of the gelatine with which their tests were made, and all of the samples taken by them were produced in court and their appearance tends to disprove the ■theory of the defendants that the effluent which they ■discharged into the river is more free from contamination and pollution than the raw water of the river into which it is discharged, ■ and that in the main the conflict is owing to the difference in the circumstances with respect to the time and place of taking and the method of identifying and preserving the samples of the water of the river and of the effluent for the tests, and particularly with respect to the stage of the operation of the filtration plant at the time of the taking of such samples.
The competition between the plaintiff and the defendants in supplying the inhabitants of the city with water has resulted in more or less friction. It is claimed on the part of the defendants that this suit and other actions were brought by the plaintiff for the purpose of coercing the defendants into purchasing the plaintiff’s plant and franchise; and on the other hand the plaintiff claims that it is at a disadvantage in retaining and obtaining customers for. water owing to the fact that the defendants are in a position to say and do give publicity to
The question presented for decision by these facts is whether the plaintiff is entitled to have the defendants enjoined from discharging the effluent from their filtration plant into the river, and leave it to them to provide another outlet therefor through the sewer in Buffalo avenue or otherwise. Of recent years our courts have frequently been called upon to adjudicate concerning the rights of riparian' owners with respect to the waters of natural fresh-water lakes and streams, and the established rule is that, while riparian owners do not own the water, each is entitled to a reasonable use thereof, which depends upon the particular facts and circumstances of the case, but must not thereby materially lessen the quantity or alter the quality of the water flowing by his premises, and that these are property rights, protected by the Constitution, of which the owner may not be deprived without just compensation, and if there be no adequate remedy at law without multiplicity of suits or there be danger that the unreasonable use will ripen into a prescriptive right — a court of equity will afford relief by injunction. Strobel v. Kerr Salt Co., 164 N. Y. 303; City of New York v. Blum, 208 id. 237; Butler v. Village of White Plains, 59 App. Div. 30; Mann v. Willey, 51 id. 169; affd., 168 N. Y. 664; Huffmire v. City of Brooklyn, 162 id. 584; Sammons v. City of Gloversville, 34 Misc.
It was first contended in behalf of the defendants that the discharge from their filtration plant into the river was authorized by the approval of the plans for the construction of the filtration plant by thé state board of water supply, but they were unable to show the approval of the plans providing for the discharge of the waste effluent into the river or a certificate from the state board' of health therefor, as is expressly required by the provisions of section 76 of the Public Health Law in order to authorize such discharge; and they have also failed to show a permit from the secretary of war as required by the provisions of section 13 of the act of congress of March 3,1899 (30 U. S. Stat. at Large, 1152), which renders such discharge into navigable waters, which the waters of Niagara river are, unlawful without such permit. The defendants,” finally, on the submission of the case, claim that if their acts are unlawful they cannot ripen into a prescriptive right and that therefore there is no basis for injunctive relief. I agree with the learned counsel for the defendants that acts in express violation of law cannot give rise to prescriptive right. See Brookline v. McIntosh, 133 Mass. 215; People v. Pelton, 36 App. Div. 450; affd., 159 N. Y. 537. But, as already stated, aside from the question of acquiring a right by prescription there is a basis for equitable jurisdiction, and moreover, it is possible, although not probable, that permits may be obtained at any time from the state commissioner of health and from the secretary of war, which would remove the statutory prohibitions.
There is no force in the contention that the action cannot be sustained without joining all parties who
There is no merit in the further contention that the
Let judgment be entered accordingly enjoining defendants during the continuance of plaintiff’s leasehold and franchise rights from discharging the effluent from their filtration plant into Niagara river, but with a provision to the effect that it shall be suspended for the period of six months to enable defendants to provide another outlet, and with leave to defendants to apply at Special Term, if necessary, for an extension of such period of suspension if for insufficiency of appropriation of funds or other cause they shall require further time.
Judgment accordingly.