Winchell v. City of Waukesha

110 Wis. 101 | Wis. | 1901

Dodge, J.

The findings and evidence disclose a very obvious nuisance, which, if created and maintained by an individual, would entitle the plaintiff to the aid of a court off equity to effect its abatement, and to damages if pecuniary injury be established, within the decisions of this court which are cited and summarized in Middlestadt v. Waupaca S. & P. Co. 93 Wis. 1, 4. Two entirely well recognized elements of special and private injury are established,, namely, substantial defilement of the waters of a stream flowing along and over plaintiff’s land so as to prevent the beneficial use of the water, and so as to injure and impair the use of the land itself; also for the creation of noisome and noxious odors interfering with the comfort, convenience,, and probably the health of plaintiff and her family in the occupation of her habitation. These injuries to the plaintiff in the use of her property and to the property itself are none the less special and private because by the same acts may be created and maintained a public nuisance in defiling the waters of a navigable stream, or in polluting the atmosphere to the detriment of the public health. It has-been declared by this court in Harper v. Milwaukee, 30 Wis. 365, 372, that “ the general rule of law is that a municipal corporation has no more right to erect and maintain a nuisance than a private individual possesses, and an action may be maintained against such corporation for injuries occasioned by a nuisance for which it is responsible in any case in which, under like circumstances, an action could be maintained against an individual.” Again, in Hughes v. Fond du Lac, 73 Wis. 380, 383, it is said, “A municipal corporation is no more exempt from liability in case it creates-a nuisance, either public or private, than an individual.” These statements are very broad, and, appellant insists, must yield to various exceptions and limitations. Certain decisions elsewhere are urged upon our attention, notably, Pennsylvania C. Co. v. Sanderson, 113 Pa. St. 126, and Valparaiso v. Hagen, 153 Ind. 337; S. C. 48 L. R. A. 707. The logic of the line of decisions illustrated by the latter case may be-summarized as follows: The collection and disposal of sewage is for the public safety. Cities therein are performing a governmental function for the general public, not a merely corporate power. The use of streams for such public purpose is within the right of the state government. No constitutional obstacle exists unless private property is actually taken. Impairment of use of running water or of the atmosphere is mere indirect and consequential damage, and does not amount to a taking of any property. The general authority to municipalities to construct sewer systems is a direct legislative authority to use the natural drainage courses, since in no other manner can the outflow be dismissed. Hence, no liability being expressly imposed, none results from the use of the water courses for such purpose, in absence of negligence. Some of the propositions in this chain of reasoning have received apparent approval in our own decisions. It has been said that garbage and sewage disposal is the performance of a governmental function for the general public (Kuehn v. Milwaukee, 92 Wis. 263); also that more limited rules of liability apply in the exercise of such function than of more distinctively municipal or corporate powers (Kuehn v. Milwaukee, supra; Folk v. Milwaukee, 108 Wis. 359); that mere consequential injury is not a taking of property within the constitutional prohibition (Alexander v. Milwaukee, 16 Wis. 247; Colclough v. Milwaukee, 92 Wis. 182, 186); that the state for certain public purposes has absolute dominance over navigable streams, without liability to riparian owners (Cohn v. Wausau B. Co. 47 Wis. 314). Some of these questions, as we view the case before us, are not essential to its decision, and are of such vast importance, and the effect of a decision so far reaching, that it ought not to be made until squarely presented and fully argued. We cannot but recognize that, as the density of our population increases, as our citizens engage in hew and greater industries, and as the municipal aggregations of population multiply and expand, tbe original purity of the streams and water basins cannot be wholly preserved. They are the natural and unavoidable courses and receptacles of drainage, through and into which must flow the refuse of human habitation and industry. ' How far these changing conditions must bring about a yielding of the private rights of continued purity of those lakes and streams to the necessity of use thereof for the public and general health and convenience, and upon what terms such yielding shall come, are primarily questions of policy for the legislature, within the limits of its power over private rights defined by the constitution. When, if ever, the legislature shall enact that streams generally or any streams shall be used as sewers without liability to the owners of the soil through which they run, the question of constitutional protection to private rights may be forced upon the courts for decision. Until such enactment is made, however, in clear and unambiguous terms, we shall be slow to hold by inference or implication that it has been made at all. The right of the riparian owner to the natural flow of water substantially unimpaired in volume and purity is one of great value, and which the law nowhere has more persistently recognized and jealously protected than in Wisconsin. Not alone the strictly private right, but important public interests, would be seriously jeopardized by promiscuous pollution of our streams and lakes. Considerations of aesthetic attractiveness, industrial utility, and public health and comfort are involved. Amid this conflict of important rights, we cannot believe that the legislature concealed, in words merely authorizing municipalities to raise and expend money for the construction of sewers, a declaration of policy that each municipality might, in its discretion, without liability to individuals, take practical possession of the nearest stream as a vehicle for the transportation of its sewage in crude and deletrious condition. At that stage in its logic we cannot agree with the Indiana court, in Valparaiso v. Hagen, 153 Ind. 337. The authority granted to municipalities is to construct sewers, but subject to the general legal restrictions resting upon such corporations forbidding invasion of private rights by creation of nuisance or otherwise. This view of the legislative purpose is enforced by the consideration that, although liquid sewage must flow off along the general drainage courses of the vicinity, it is by no means physically necessary that it should carry with it the solids in an offensive or unhygienic condition. Hackstack v. Keshena I. Co. 66 Wis. 439. It is a matter of common knowledge, and of proof in this case, that there are practicable methods for the decomposition and practical destruction of such solids before delivering them into open watercourses; the most modern method, as explained in the evidence here, being treatment in septic bacteria tanks, whereby the decomposition and resolution into inoffensive and innocuous fluids, gases, and mineral solids is greatly expedited. This method, it appears, could be installed at Waukesha at a cost approximating $5,000. It is not probable that the legislature has wittingly authorized the defilement, and almost destruction, of our streams, to enable such trifling measure of economy to municipalities. The great weight of authority, American and English, supports the view that-legislative authority to install a sewer system carries no implication of authority to create or maintain a nuisance, and that it matters not whether such nuisance results from negligence or from the plan adopted. If such nuisance be created, the same remedies may be invoked as if the perpetrator were an individual. The following are selected from an almost unlimited array of decisions: Jacksonville v. Lambert, 62 Ill. 519; Jacksonville v. Doan, 145 Ill. 23, 29; O'Brien v. St. Paul, 18 Minn. 176; Clark v. Peckham, 9 R. I. 455; Good v. Altoona, 162 Pa. St. 493; Owens v. Lancaster, 182 Pa. St. 257; Haskell v. New Bedford, 108 Mass. 208; Morse v. Worcester, 139 Mass. 389; Morgan v. Danbury, 67 Conn. 484; Platt Bros. & Co. v. Waterbury, 72 Conn. 531; Chapman v. Rochester, 110 N. Y. 273; Missouri v. Illinois, 180 U. S. 208; Carmichael v. Texarkana, 94 Fed. Rep. 561.

From what has already been said our conclusion is obvious that the creation and maintenance of a nuisance by the defendant city, causing special and private damage to the plaintiff, fully appears from the finding and evidence, and that plaintiff is entitled to the same remedies as if the defendant were a private individual. One of the forms of relief authorized by sec. 3180, Stats. 1898, is accorded by the judgment appealed from, and, subject to modification to be hereafter suggested, was entirely proper under the circumstances.

Defendant assigns error upon the admission of certain evidence tending to show that its sewer system might practicably be equipped with septic tanks, or other apparatus to deodorize and render innocuous the outflow, construing this as tending to charge negligence upon the city. The rule is, of-course, familiar that in an action tried without a jury the admission of improper evidence alone would not work reversal, but we do not deem this evidence improper. While there was no issue of negligence either in construction or management of the sewer, the prayer for an injunction was addressed to a court of equity, and the effect of such remedy upon the defendant was an important consideration in guiding the court to a decision whether it ought to apply the drastic process of injunction, or ought to leave the plaintiff to her other remedies. It was extremely material to that consideration to ascertain whether such injunction would utterly destroy the entire sewer system of Waukesha, and subject its citizens to serious inconvenience, and peril of disease. The fact that the system as now existing could still be used by adding appliances involving no very great expense justifies relief by injunction, and in that respect the evidence was admissible.

It is contended that the complaint warrants no relief in equity, because it fails to allege m hma verba any of the several conditions of equitable relief prescribed by sec. 3180, Stats. 1898. The complaint does, however, allege facts showing fully irreparable injury, and that the same is continuously and constantly recurring, and that any remedy' obtainable in a court of law would be inadequate. This must suffice without stating either- of these conclusions from the specific fácts so alleged.

An objection is raised to the jurisdiction of the county court of Waukesha county for that such court is limited to cases in which “the value or amount in controversy or the amount claimed or sought to be recovered after deducting all payments and setoffs shall not exceed $25,000.” We find nothing in this record to support the view that such limit is transcended. The plaintiff’s property, which the ■action is brought to protect, is of value only about $10,000. The damages claimed are but $6,000. If, as appellant contends, we consider the effect upon defendant, we find un contradicted evidence that the nuisance complained of can be ■abated by appliances costing only about $5,000. Thus, on .any theory of the value or amount in controversy, it is less than $25,000, and we need not consider the several constructions possible to the statute.

‘ While the unlimited form of injunction embodied in the judgment is not discussed as an independent ground of error, yet it is before us upon this appeal, and we do not feel, justified in approving the judgment without such qualification as will make obvious the meaning which we are persuaded the trial court intended to express. The judgment restrains defendant “ from discharging its sewage through its sewer system into the Fox river at any time after December 1, 1901.” Similar language received consideration in Morgan v. Danbury, 67 Conn. 484, and was sustained on the ground that the word “sewage ” would be understood to refer only to “the refuse and foul matter, solid or liquid,” carried through the sewer by the water therein flowing. In that case, as here, it was contended that some disinfecting apparatus would effectively purify the water. In the case at bar the findings make apparent the views of the trial court that some such addition tó defendant’s present system could be made practically effective to prevent the damage of which plaintiff complained, and that he had such appliance in mind in his finding “that until December 1, 1901, is a reasonable time to allow said defendant city to change its sewage system, and provide for the doing away with the nuisance to plaintiff.” The same idea evidently persisted in the conclusion of law and order for judgment, for it is there declared that defendant “should be restrained from continuing such nuisance, and from further emptying or depositing its sewage into said Fox river in such condition cmd manner as to oréate the nwisance to the plaintiffP We have no doubt the judgment was intended to express the same thing, and only upon that construction do we approve of it. To the end, however, that any ambiguity may be removed, we deem it best to modify the judgment as below.

By the Court.— The judgment of the county court is modified by adding to the second paragraph the following words, to wit: “ Unless the same shall have first been so deodorized and purified as not to contain foul, offensive, or noxious matter capable of injuring the plaintiff or her property or causing nuisance thereto,” and, as so modified, the same is affirmed.