City of Pittsburg v. Smith , 1921 Tex. App. LEXIS 336 ( 1921 )

(after stating the facts as above). The evidence conclusively shows that there is a continual and considerable overflow from the sewage disposal plant, and of that character that pollutes the waters of the branch and creates offensive odors and a stench that causes especial discomfort and inconvenience to the plaintiff in her home near by; and this condition is due, as alleged in the plaintiff's petition, to the fact that "said septic tank is too small to accommodate the number of water-closets connected therewith." After hearing the evidence the court concluded from the evidence that the plaintiff "is entitled to the relief sought," which is to have stopped or abated the further continuance of the alleged nuisance; and this relief, as awarded, was based upon the conclusions of fact, as recited by the court:

(1) That "the said sewer system as maintained and operated is an abatable nuisance"; and (2) "that plaintiff suffers considerable discomforts and inconveniences therefrom."

The appellant, though, assigns the error that —

"The court erred in his first conclusion of law, in concluding that the sewer owned and operated by the defendant is an abatable nuisance."

According to the evidence there were fewer patrons of the sewer at the time of its original installation than at the time of the suit. The sewage disposal plant has been "overhauled" by rebuilding the "gravel bed" and renewing all the pipes and adding "a structure walled up with brick and cemented solid and about six feet in diameter." This "overhauling" did not sufficiently, as appears, lessen the condition complained of by the plaintiff. And the evidence is sufficient to support the court's finding of fact that "the city of Pittsburg has tried [by the overhauling] to eliminate the objectionable feature of the said system, but has not been able to do so." The overhauling work, then, was not a sufficient enlargement of the sewage disposal plant to accommodate the users, and failed in that purpose, as meant by the court's finding. And there is no evidence that the sewage disposal plant cannot be added to or enlarged to the extent necessary "to accommodate the number of water-closets connected therewith" at the time of the suit or trial. In the circumstances, then, the court was warranted in finding that the sewage disposal plant "as operated and maintained" could be added to or enlarged to the capacity necessary to "abate" or stop the nuisances complained of by the plaintiff.

The question next is: Can a municipal corporation be enjoined, as here, from maintaining and operating a sewage disposal plant or tank too small to accommodate the number of water-closets connected with it, as pleaded by the plaintiff? We think the question must be answered in the affirmative.

"Frequent ground of application for the preventive aid of equity by injunction is found in cases," quoting from 1 High on Injunctions (4th Ed.) § 810, "of the pollution of water by the flow of sewage from towns or cities into streams whose waters are thereby injured or rendered unfit for use."

See Donovan v. Royal, 20 Tex. Civ. App. 248, 63 S.W. 1054; Cardwell v. Austin, 168 S.W. 385; 29 Cyc. 1180.

In operating a sewer the city exercised a corporate power, as distinguished from a governmental function. Ostrom v. City of San Antonio, 94 Tex. 523, 62 S.W. 909; City of Paris v. Jenkins,57 Tex. Civ. App. 383, 122 S.W. 411. Therefore the fact that the public uses the sewer is not legally sufficient to exempt the city from restraint against committing a nuisance in the manner and mode of operation of the sewer. The cases relied on by appellant do not have application to a structure that can be so enlarged or added to as to "abate" or stop the continuance of the nuisances alleged and proved here.

The judgment as entered should, we think, be modified as to the restraining order granted, and the terms thereof reformed, so as to enjoin the maintenance and operation of the sewage disposal plant or tank in the unsanitary condition, and from pollution of the waters of the branch, shown by the facts found by the trial court. As so modified and reformed, the judgment will be affirmed.

Modified and affirmed.