Messer v. City of Dickinson , 71 N.D. 568 ( 1942 )

I concur in an affirmance of the judgment. The facts alleged in the complaint, established by the evidence and found by the court, clearly entitle plaintiff to a judgment in at least the amount awarded by the trial court.

The complaint alleges that the plaintiff is the owner and occupant, and for more than six years last past has been the owner, of certain real property, namely a hotel, in the city of Dickinson; that the defendant in the use and operation of its sewer system constructed a sewer outlet on the Heart River located not to exceed 200 yards from plaintiff's property; that in the use and operation of such system the defendant has cast into the river an excessive amount of sewage matter with improper and insufficient treatment, which matter has been allowed to pollute the stream bed of the Heart River in such manner as to cause nauseating and offensive odors and stenches which have made it impossible for people to sleep in said building and that as a result of the action of the defendant in the operation of such sewer system plaintiff has been damaged in her business and in the rental value of her said property in the sum of $4,000.

The complaint further alleges that the plaintiff has no plain, speedy and adequate remedy at law, and suffers and will continue to suffer, great and irreparable damage unless the defendant be enjoined from using the Heart River for the discharge of excessive quantities of sewage and other waste matter without treating or disposing of the same in such manner as to render the same inoffensive and unobjectionable; that the acts and conduct of the defendant in its said practice is a public nuisance in that it annoys and injures the comfort, repose, health, and safety of a certain number of persons, to wit — all persons situated in the vicinity of Dickinson, and that such conditions offend public decency and render life and the use of property uncomfortable and endangers the public health.

The prayer for judgment is for a permanent injunction against the discharge of the sewage until the defendant has erected and put into use a disposal plant that will properly treat such sewage and render it inoffensive and that the plaintiff have damages in the sum of $4,000 to compensate her for the loss which she has sustained.

This action was instituted in March, 1939, and was tried in December, 1939. In the answer it was alleged that prior to the commencement of the action "the defendant city had passed an Ordinance providing for the construction and equipment of a sewage disposal plant at a cost of approximately $129,000.00; that said sewage disposal plant will be constructed according to the latest improved methods . . . and have a capacity large enough to properly treat the sewage from a much larger city than that of the Defendant; that the plans and specifications of said proposed sewage disposal plant have been duly approved by the State Health Department; that contract has been let for the construction of said sewage disposal plant and that work has been started on construction of the same; that said plant will be completed the first part of November, 1939."

The evidence adduced was to the effect that, interim the commencement of the action and the trial, the city had constructed a modern and efficient sewage disposal plant and that such plant had been, or was about to be, put into operation; and the demand for injunctive relief was no longer pressed. The court made findings of fact in favor of the plaintiff upon all questions relating to the injuries sustained by the plaintiff's hotel property, and found that plaintiff had been damaged in the amount of $1,152, and ordered judgment for the plaintiff in that amount. The court further concluded that the defendant having built a modern sewage disposal plant and thus terminated the condition which had given rise to the injuries to the plaintiff, the plaintiff was not entitled to an injunction. Judgment was entered in accordance with such findings, and the defendant city has appealed.

The evidence in the case shows that the city of Dickinson established its sewer system in 1907 or 1908. About the same time it constructed a septic tank at the place referred to in plaintiff's complaint. Originally only the sewage from the "north side" of Dickinson went into the septic tank and the sewage from the "south side" of the city went into the river at a different point and did not come into the septic tank at all. About 1930 a second septic tank was constructed adjacent to the first one. This tank was considerably larger than the tank first constructed and from that time on the sewage from the "south side" was taken into the septic tanks so that thereafter the sewage from the entire city came through the septic tanks.

The city engineer (having been called as a witness for the defendant city) testified that originally sludge-drying or contact beds (which apparently are a proper if not an indispensable part of a "septic tank and contact bed system" for sewage purification — 1 Farnham, Waters, pp. 626-628) had been constructed adjacent to the tanks; but that these beds had been washed out by flood waters and that in recent years the sludge pumped from the tanks has been released into the river. He further testified that offensive and noxious odors resulted from the sewage discharged from the septic tanks; that such odors were caused by hydrogen-sulphide gas, and that such gas was generated by bacterial action upon organic matter, — "solids from the sewage," — taking "place in the bottom of the river."

The city engineer further testified that the sewage disposal plant that the city had constructed after the commencement of the action had, and in his opinion would, "remedy the situation as to the bad odor."

The plaintiff is the owner of a hotel property located about 540 feet from the point where the discharge from the septic tanks goes into the river. Plaintiff's hotel is nearer to such outlet than any other building in the city and is about 400 feet from the river. The evidence shows, without the slightest doubt, that a very serious condition has arisen as a result of the discharge of the sewage into the river and that such condition has existed during all the times involved in this action. The testimony of all the witnesses, both those of the plaintiff and of the defendant, is to the effect that there was generated a vile odor and stench from the sewage that was dumped into the river from the septic tanks. One of the witnesses who had been a guest at the hotel for a long time testified that during the summer months "you could not leave windows open;" that you "would wake up with an awfully dry mouth and a dry feeling through your system and you cannot breathe very easily and also if you eat you cannot keep your appetite." Another witness testified that the odor was very sickening and that at times it gets right down into your lungs and that you would wake up with a dry feeling. A witness testified that the smell was "awfully sickening" and that it made her half sick all the time she was there and that it gave her headaches. Other witnesses testified that even though the windows were closed, "the odor would get into the rooms and stick there;" that the odor was so bad that you could not sleep; that it would get into the throat and interfere with breathing; that it was worse in the night than in the daytime; that guests would come for one meal and refuse to stay because of the bad odor. One witness testified that the odor was very sickening; that it made her dizzy. Another witness testified that it was "awfully unpleasant so that you wanted to get away from there." The witnesses called by the defendant stated that the condition was very bad. One witness called by the defendant who operates a hotel on the main street of the city, many blocks from the river, testified that at times during the summer when the wind blew from the river the odor was so bad and sickening at his place of business that guests went on rather than stay over night.

The testimony shows that interim the construction of the septic tanks and the institution of this action, the city has grown in size. The population has increased considerably, and many additional buildings have been constructed and connected with the sewers.

A chemist who was called as a witness for the plaintiff testified, without objection, that the hydrogen-sulphide gas, which the city engineer said was the source of the noxious odor, is about 17 per cent heavier than air; that in water it has a disagreeable taste, and that when inhaled it causes nausea; that it is poisonous and will cause headaches if inhaled in sufficient quantities. Evidence was adduced that the rental or usable value of plaintiff's hotel property had depreciated some $40 or $50 per month during the six years preceding the commencement of this action as a result of the gas and noxious odors caused by the sewage.

There was no evidence and no attempt to introduce any evidence showing any damages resulting from personal discomfort, inconvenience or illness. The evidence adduced was restricted solely to the injury to the hotel property and the amount to which the rental or usable value of the property had depreciated during the six year period as a result of the discharge of the sewage.

The evidence in this case establishes beyond any question that the vile and noxious odors arising from the sewage constituted a continual annoyance, seriously interfered with the use of plaintiff's property, and depreciated the rental or usable value thereof in an amount at least as great as that which the court found. The evidence, also, shows that the injury caused to the plaintiff is one not shared by the people generally. Because of the location of plaintiff's property it was injured to an extent and in a manner not shared by other property.

The defendant contends that even though the facts are as found by the trial court, the plaintiff is not entitled to recover, because, says the defendant, it was authorized by the laws of this state to do what it did, and consequently no right of action arose against it. The laws which the defendant claims exempt it from liability are §§ 3697 and 7231, Comp. Laws 1913. Section 3697 provides that a "city council shall have power to establish and maintain at any time a general system of sewerage for the city, in such manner and under such regulations as the council shall deem expedient," and "that any city may empty or discharge its sewerage into any river." Section 7231 provides, "Nothing which is done or maintained under the express authority of a statute can be deemed a nuisance." It is contended that inasmuch as the city had statutory authority to empty and discharge its sewerage into the Heart River, any pollution of the river or any offensive or noxious odors that may have resulted cannot be deemed a nuisance, and that the city may not be held in damages for any injury that may have been caused by the sewerage discharged into the river.

In my opinion the contention is untenable. Section 3697, supra, does not confer upon a city unlimited and unrestricted authority to empty or discharge sewage into a river without regard to the rights of others. It is a permissive statute, conferring a general power. It does not specify the manner in which the sewer shall be constructed or the sewage treated. If the Legislature intended there should be no limit upon the right of a city to discharge sewage into a river, then it authorized the pollution of waters without limit and without regard to consequences. Leaving on one side all question as to power, it should not be presumed that the Legislature had any such intention unless it used emphatic and definite language to express it.

The rule is well established that a statute authorizing a city to discharge sewage into a stream is accompanied with an implied qualification that there is no authority to invade or violate the legal rights of others. Woodruff v. North Bloomfield Gravel Min. Co. (CC) 9 Sawy 441, 18 F 753, 771; Sammons v. Gloversville,175 N.Y. 346, 67 N.E. 622; Seifert v. Brooklyn, 101 N.Y. 136, 4 N.E. 321, 54 Am Rep 672; Cogswell v. New York, N.H. H.R. Co. 103 N.Y. 10, 8 N.E. 537, 57 Am Rep 701; Morse v. Worcester, 139 Mass. 389, 2 N.E. 694; 46 CJ 675; Joyce, Nuisances, § 289; 1 Farnham, Waters, pp. 628-633; Winchell v. Waukesha, 110 Wis. 101, 85 N.W. 668; 39 Am Jur pp. 483-486, Nuisances, 21 Am Eng Enc Law, 2d ed. pp. 736, 737; 8 Enc US Sup Ct Rep pp. 938, 939.

"In accordance with the rule that the legislature will not be presumed to have authorized a nuisance, all statutory authority will be strictly construed so as to effect that result. Thus, mere general authority to establish a sewer system will not confer the right to turn the sewage into a stream so as to cause a nuisance." 1 Farnham, Waters, p. 633.

"Mere permission to cast sewage into a stream does not include authority to create a nuisance, . . . for it is not conceivable that the legislature will command or directly permit the creation of a public nuisance." 1 Farnham, Waters, p. 635.

"Legislative authority of a character to justify conduct that in the judicial view would constitute a nuisance must be express, or must be given by clear and unquestionable implication from the powers expressly conferred, so that it can fairly be said that the legislature contemplated the doing of the very act which occasioned the injury. It will not be presumed that the legislature intended to authorize the creation of a nuisance, but the presumption is to the contrary, unless the offensive conduct is the natural and necessary result of an exercise of the power conferred. . . .

"Ordinarily, a statute or constitutional provision which authorizes a thing to be done which can be done without creating a nuisance will not be deemed to authorize a nuisance. And where the use and enjoyment of a legislative grant does not necessarily and naturally create a nuisance, but the nuisance results from the method of the use and enjoyment, the grant constitutes no defense. . . .

"If the authority given to make a particular use of land is, in the strict sense of law, permissive merely, and not imperative, the legislature must be held to have intended that the use sanctioned is not to be in prejudice of the common-law right of others, and the authorization will not relieve from liability for a nuisance. . . .

"A license or statute permitting the acts or things complained of as a nuisance must be strictly followed in order to prevent such acts or things from becoming a public nuisance. The protection of the statute is lost if the authority given is exceeded or is exercised in a negligent, careless, or unreasonable manner, or if works or structures authorized by it are placed without regard to the rights of others." 39 Am Jur pp. 483-486, Nuisances, § 206.

In Sammons v. Gloversville, 175 N.Y. 346, 67 N.E. 622, supra, the legislature had empowered the city to construct sewers and to maintain them so as to discharge into a stream known as "Cayadutta Creek." In construing the meaning and effect of this statute, the New York Court of Appeals said: "The common council is empowered to construct sewers, and to maintain them so as to discharge into the stream known as ``Cayadutta Creek.' This is a permission, and not a direction; and a legislative permission neither implies a right to appropriate property, without compensation, nor confers a license to commit a nuisance. . . . We think that the legislative intent was that the discretion of the municipal authorities in maintaining a system of sewage should be exercised in conformity with private rights, and, if their destruction be involved, that in such a case payment must be made."

In Morse v. Worcester, 139 Mass. 389, 2 N.E. 694, supra, suit was brought to abate a nuisance, alleged to have been created by the discharge of sewage into a stream by the city of Worcester. There was a statute authorizing the city to "use and appropriate" certain brooks "so far as they shall adjudge necessary for purposes of sewerage." In that case, as here, it was contended that the statutory authorization was a complete defense. In disposing of that contention, the Supreme Judicial Court of Massachusetts said, in part:

"When the legislature authorizes a city or town to construct sewers, or to use a natural stream as a sewer, it is not to be assumed that it intends to authorize the city or town so to construct its sewers or so to use the stream as to create a nuisance, unless this is the natural result of the powers granted. On the contrary, if it is practicable to do the work authorized without creating a nuisance, it is to be presumed that the legislature intended that it should be so done. . . .

"In the case at bar the legislature authorized the city of Worcester to use Mill brook as a sewer. By necessary implication the statute authorized it to empty its sewage into Blackstone river. But we cannot presume that it was the intention of the legislature to exempt the city from the obligation to use due care in the construction and management of its works, so as not to cause any unnecessary injurious consequences to the rights of others. If it is practicable to use any methods of constructing the sewer, and as a part of the construction of purifying the sewage at its mouth, at an expense which is reasonable, having regard to the nature of the work, and the magnitude and importance of the interests involved, it is the duty of the city to adopt such methods."

In Winchell v. Waukesha, 110 Wis. 101, 85 N.W. 668, supra, the Supreme Court of Wisconsin said:

"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. . . .

"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."

"A statutory sanction cannot be pleaded in justification of acts which by the general rules of law constitute a nuisance, unless the acts complained of are authorized by the express terms of the statute under which the justification is made, or by the plainest and most necessary implication from the powers expressly conferred, so that it can be fairly stated that the legislature contemplated the doing of the very act which occasions the injury." 46 CJ 674.

The pollution of the river and the offensive and noxious odors which damaged plaintiff's property were not the necessary result of the discharge of sewage into the river. The evidence adduced by the defendant discloses that it was wholly unnecessary to pollute the stream and to create such offensive and noxious odors; that this could have been obviated by proper treatment of the sewage. The testimony of defendant's engineer shows that the offensive and noxious gas and odors have been eliminated as a result of the treatment of the sewage in the sewage disposal plant.

Section 7231, supra, does not justify the wrongful acts pleaded and proven in this case. That section negatives the idea that it affords justification for acts that otherwise would constitute a nuisance, where such justification is claimed under a general and permissive statute. It is only something that is done or maintained "under the express authority of a statute" that is exempted. Section 3697, supra, did not authorize the defendant city to pollute the river, and create and maintain the conditions that generated the offensive and noxious odors that resulted in injury to the plaintiff.

"It is one of the conditions always implied by the law, that one's rights, whether granted or regulated by the legislature, shall be exercised with due regard to the rights of others — so exercised as not to injure another; and certainly no authority to encroach upon the vested rights of others can be inferred without being in express terms clearly authorized; and this principle is expressly recognized in the statutory limitation on the definition of a nuisance cited. This express provision excludes the idea that the legislature contemplated any other limitation than such as is authorized in ``express' terms. It is as potent in the form expressed, as if the statute had said, in express terms, that there should be no other limitation." Woodruff v. North Bloomfield Gravel Min. Co. (CC) 9 Sawy 441, 18 F at p. 771.

The Supreme Court of the United States has said: "The Acts that a legislature may authorize, which, without such authorization, would constitute nuisances, are those which affect public highways or public streams, or matters in which the public have an interest and over which the public have control. The legislative authorization exempts only from liability to suits, civil or criminal, at the instance of the state; it does not affect any claim of a private citizen for damages for any special inconvenience and discomfort not experienced by the public at large." Baltimore P.R. Co. v. Fifth Baptist Church, 108 U.S. 317, 27 L ed 739, 2 S. Ct. 719.

Section 7231, supra, did not create a new legal principle. It merely adopted in statutory form a principle then well established. The section was embodied in the report of the Field Commission of 1865, and was enacted by the legislature of the Territory of Dakota, taking effect January 12th, 1866. Laws of Dakota, 1865-66, Civil Code, § 1952. Subsequently the section was adopted in identical language in a number of states, including California, Montana and Oklahoma. The supreme courts in those states have held that this section cannot be pleaded in justification of acts which under the general rules of law constitute a nuisance, where such acts are performed under authority of general and permissive statutes. Lennon v. Butte,67 Mont. 101, 214 P. 1101; Hassel v. San Francisco, 11 Cal. 2d 168,78 P.2d 1021; People v. Glenn-Colusa Irrig. Dist. 127 Cal. App. 30,15 P.2d 549; People v. Reedley, 66 Cal. App. 409, 226 P. 408; Woodruff v. North Bloomfield Min. Co. (CC) 9 Sawy 441, 18 F 753, supra; Jennings v. Pappenfus, 129 Okla. 85, 263 P. 456.

In Lennon v. Butte, 67 Mont. 101, 214 P. 1101, supra, suit was brought against the city to recover damages claimed to have resulted from the collection and disposal of garbage. It was asserted that as a result of the hauling of the garbage and the burning of the same in an incinerator a short distance from plaintiff's house, the air became contaminated with noxious odors and smells, and that a large number of flies and insects bred and gathered in that vicinity. In that case, as here, the defendant city contended that it was not liable in damages; that it had authority under the statute to regulate the removal and disposal of garbage and that the statute, identical in terms with § 7231, supra, exempted it from liability for maintaining a nuisance. The supreme court of Montana held that the acts of the defendant city constituted a nuisance and that the statute constituted no defense for the city. In the opinion in that case the court said:

"It is urged that . . . the acts of the city in making deposition of the ashes and garbage, as alleged, were done under express authority of law, and therefore it could not be held that it was maintaining a nuisance, by reason of the provisions of § 8645, Revised Codes of 1921, which read, ``Nothing which is done or maintained under the express authority of a statute can be deemed a nuisance.' . . .

"When the use and enjoyment of a legislative grant does not necessarily and naturally create a nuisance, but the nuisance results from the method of the use and enjoyment, the grant constitutes no defense. 20 RCL 503. The fact that § 5039, supra, gives a city the power to regulate the removal and deposition of garbage and offensive matter does not give it the right to so deposit the same as to create a condition which would be injurious to the health, or indecent, or offensive to the senses, and interfere with the comfortable enjoyment of life and property. Such a result would not naturally or necessarily follow from the grant of such power."

In Hassel v. San Francisco, 11 Cal. 2d 168, 78 P.2d 1021, supra, action was brought to enjoin the city and county of San Francisco from constructing a public convenience station. The statute conferred upon the Park Commission exclusive control and management of parks, including the exclusive right to erect and superintend the erection of buildings. In that case, as here, the defendant city contended that this statutory authority, coupled with the provisions of a statute identical with § 7231, supra, constituted authority to construct the station. The court held that the statute constituted no defense — that the authority given to the city might "not be exercised in such manner as to create a nuisance."

In Woodruff v. North Bloomfield Gravel Min. Co. (CC) 9 Sawy 441, 18 F 753, supra, the statute was invoked as justification for putting certain debris into a stream. The court rejected the contention and held that the statute furnished no defense.

Jennings v. Pappenfus, 129 Okla. 85, 263 P. 456, supra, involved a septic tank into which the sewers of the town were discharged. It was charged that the sewers and septic tank as maintained constituted a nuisance, and action was brought to enjoin the maintenance thereof and to compel an abatement of the same. The town contended that the sewer system was maintained under statutory authority and that under a statute, identical with § 7231, supra, the acts of the town could not, and did not, constitute a nuisance. The supreme court of Oklahoma denied this contention and sustained a judgment against the town enjoining continuance of the nuisance.

In People v. Reedley, 66 Cal. App. 409, 226 P. 408, supra, action was brought to abate a public nuisance alleged to result from the discharge by the city of Reedley of sewage into a river. There, as here, the statutory provision, identical in language with § 7231, supra, was invoked as a defense. In disposing of this contention, the court said: "We do not see that this section alters the situation in any particular. It certainly does not authorize anyone to discharge injurious matter into the waters of a public stream or empower the state board of health to issue a permit which would authorize any person to create a nuisance or continue a nuisance after being created."

The decision of the supreme court of California in Pasadena v. Stimson, 91 Cal. 238, 27 P. 604, does not announce a rule contrary to the California decisions cited above. That was a proceeding to condemn right-of-way for an outfall sewer for the city of Pasadena. There was a motion for a nonsuit. One of the grounds of such motion was, "that the proposed sewer will be a nuisance affecting injuriously the health of the people of Alhambra." In considering this contention the court said, in part: "There was no evidence that the sewer, as it was proposed to construct it, would be more of a nuisance than any sewer would be. So far as appears, the sewer was well planned, according to current sanitary views. Certainly there was nothing tending to show that it was an improper kind of sewer, and therefore it could not be regarded as a nuisance per se. A sewer in the neighborhood of dwellings may be an evil, but it is evidence that the legislature regards it as a necessary evil, since it allows private property to be taken for the construction of sewers. Sewers are in fact a necessary evil; but when they are planned and constructed with reasonable regard to the results of sanitary teachings they are authorized by statute, and ``nothing which is done or maintained under the express authority of a statute can be deemed a nuisance.' Civil Code, § 3482. In short, the plaintiff, being a city with sewage to dispose of, and having a sewer farm to which it has apparently a right to conduct it, has necessarily the right to construct such a sewer as the statute (Code Civ. Proc. § 1238) contemplates, and such a sewer cannot be a nuisance in the strict sense of the term. That it may occasion loss or injury to others for which they will be entitled to compensation is a different proposition, which will be considered in another connection."

In a subsequent paragraph the court said: "The court was so far right, therefore, in holding, as it did in effect, that the damage to the defendants could not be estimated upon the assumption that the sewer, when constructed, would cause greater discomfort or inconvenience than the sewer described in the complaint and in the decree. The plaintiff, in order to justify its future proceedings under any decree of condemnation in this suit, must construct its sewer in accordance with the terms of the decree, and it must operate it in a careful, skillful, and proper manner. If it does not, it will be liable for damages for its neglect in these particulars, and the persons damaged, though parties to this proceeding, will not be concluded by the damages allowed therein."

The facts alleged in the complaint and established by the evidence in this case show beyond all question that the sewage discharged by the defendant resulted in pollution of the air with poisonous gas and noxious odors and that as a result plaintiff's property was made less valuable and that the rental and usable value thereof was greatly depreciated. The impregnation of the atmosphere with the gas and noxious odors that passed over plaintiff's property was an invasion of legal rights incident to the land itself and essential to its beneficial enjoyment. Moody v. Saratoga Springs, 17 A.D. 207, 45 N.Y.S 365; Wood, Nuisances, 2d ed. p. 868; Ingmundson v. Midland Continental R. Co. 42. ND 455, 173 N.W. 752, 6 A.L.R. 714; Donaldson v. Bismarck, post, 3 N.W.2d 808.

These acts of the defendant, which resulted in damaging plaintiff's property, were not authorized by an express statute; nor were they authorized by necessary implication from any general authority conferred upon the city. They were forbidden not only by our statutes but by the Constitution.

BURR, Ch. J., I agree with the foregoing statement.