Murphey v. Mayor & Council , 5 Del. Ch. 281 ( 1879 )

The Chancellor.

The complainants have in their bill very minutely described “ Shipley Bun ” from its sources to-its mouth.

The bill is filed, not as a complaint in respect to anything-done by authority of the city council during a long series of years previous to the assessment of a 'tax upon property-holders to pay a share of the expenses for constructing a culvert along Munroe Street, in respect to said Bun, but solely to-restrain the collection of any part of said taxes from the complainants, or rather from a sale of the lands, late of John Montgomery, of which they claim to be the present holders- and owners, as stated in their bill of complaint.

Their solicitor has argued that Shipley Bun is a natural watercourse; and the contention in effect seems to be that the-city council had no authority to construct the culvert down Munroe Street, in such a manner that the waters of said Bun would be diverted from their original course.

The bill itself states that Shipley Bun, had, before the-building of said culvert, passed through culverts along and" across several stree.ts in said city before it reached MunroeStreet.

If the condition of Shipley Bun was such as described in the complainants’ bill, it was certainly the duty of the city to-have guarded the health and comfort of the inhabitants against alarming consequences which might reasonably have been anticipated from the condition of said “ natural watercourse,” as it is called, long before they awoke to the necessity of performing this duty by the construction of this culvert in Munroe Street.

The complainants themselves, in their bill, say “ that said Shipley Bun, in its course through the said lot Bo. 1, was a stream of considerable size, having during the dry season a width of from 6 to 8 feet, an average depth of from 6 to 12 inches, and running with reasonable rapidity; that the said stream, during the prevalence of rains, increased in size to-many times its ordinary volume, frequently becoming a torrent, and, by reason of the failure of the said city to keep the-. channel of said culvert or conduit (existing before the one in Munroe Street was made) crossing Front Street, as aforesaid, open and unobstructed, overflowing its bánks and submerging the said lot No. 1.”

Again, section 5 of the bill states “ that the waters of the said Shipley Run, before reaching the said premises, passed by or under sundry slaughter-houses, leather manufactories, and industrial establishments of other kinds, as well as the filth from sundry sinks constructed over them, or by "the side of the said stream and the foul and unwholesome surface water from many dwelling-houses; that the said stream thus-contaminated and polluted did, in its passage through the said lot No. 1, which then was and still is open and wholly unoccupied, not only injuriously affect the value of said premises., but did prove much detrimental to the comfort, health, and interests of the whole neighborhood, which then contained a large population.”

Now, it should be observed that this bill is filed, not for relief against anything that has been done by the city council of Wilmington previously to the building of the culvert down Munroe Street, but only for that which is alleged to have-been the result of building that culvert down said street and through said lot No. 1.

The effect of building that culvert was to divert the said Shipley Run, thus contaminated and polluted, through lot No. 1, that it might not thereafter injuriously affect the value-of said premises, as it was said to do in the bill itself, before-said culvert in Munroe Street was built, but much more; that it might not in future prove detrimental to the comfort, health, and interest of the whole neighborhood, which, then contained a large population, as it had theretofore done.

Surely if the city council of Wilmington and those acting-under its authority never committed greater wrong or injury to the people of that city than they have done by the building of the Munroe Street culvert, they will deserve praise, and not blame.

It is a perversion of the common-law doctrine in respect to the diversion of natural watercourses to apply that doctrine to such a stream,—if stream it can be possibly called,—as that of Shipley Run, rising in the springs of the northern part of the city and passing, by a sinuous course, under sinks and manufactories, through culverts, and emptying its filth, before it finally discharges into the Christiana River, upon low ground in the midst of the city, and endangering the health and comfort of a numerous surrounding population.

Shipley Run is no such watercourse as the municipal authorities of a large city, like Wilmington, may not divert or fill up, if they choose, for the protection of the lives, health, and comfort of the inhabitants of the city.

I therefore dismiss this part of the complaint without -further consideration or remark.

The only remaining branch of the case, made by the bill, that requires notice, are the facts that, John Montgomery being dead the greater part of these three lots mentioned in the bill had, by his heirs at law, been sold at public sale in the city of Wilmington, and conveyed to sundry purchasers ; and that the assessment made for the construction or building of the culvert along Munroe Street was against the heirs of John Montgomery, or lands of the heirs of John Montgomr ■cry, and not lands of the several purchasers of said lands formerly belonging to John Montgomery; and that the particular shares so sold to the purchasers thereof were not particularly described as they should have been according to an ordinance of the city council.

In respect to the objection taken in the bill to the impropriety, if any, in this respect, it may be remarked that the subject-matter assessed—namely, the lands which formerly belonged to John Montgomery—was liable to assessment notwithstanding any divisions thereof which may have been made by his heirs; and notwithstanding who may have become the purchaser of the several subdivisions thereof.

Even if it be admitted (of which, however, there is no proof in this cause) that the city council, or Griffith acting under its authority, knew of the divisions of the said land as stated in the hill by the heirs of John Montgomery, there is; no allegation in the bill, and no proof, that the conveyances by the heirs, if any such existed, to the purchasers, were matters of record, which were noticed to Griffith or the city council.

The court of chancery, in affording relief, regards the evil or the wrong complained of only when it is substantial, and not trifling or unsubstantial.

Equity regards the substance and not the accidents of things; and courts of equity' will not intervene where substantial justice does not require such intervention.

Knowing that the lands formerly of John Montgomery,, which some of them had inherited as his heirs at law, and some had purchased from those heirs as his heirs at law, were liable for a proportionate share of the expenses in making- and constructing the culvert down Munroe Street^ and that said lands were liable for the payment thereof whoever might be the holder and the owner of same; which facts were known to the plaintiffs in the bill of complaint before it was filed, or it would not have been filed,—it was perfectly competent for them to ascertain their proportionate shares thereof by computation among themselves, and to discharge the tax as a lien upon said land, by the payment thereof, without invoking the aid of a court of equity to intervene and thus become a supervisor in respect to the compliance or noncompliance with all the ordinances of a great city, by its officers in the administration of the multifarious affairs of the city.

I pass by, entirely, all suggestions made in the bill as to-the improper construction of the culvert mentioned, and of' its inadequacy to answer the purposes for which it wyas constructed.

These were matters wholly for the consideration of the city council, and are not the subjects of review in this court.

I shall therefore decree that the preliminary injunction heretofore awarded in this cause he dissolved, and that the bill be dismissed, with costs.