Town of Shelby v. Cleveland Mill & Power Co.

The plaintiffs do not rely upon the principles of the common law, but rest their case solely upon section 3051 of the Revisal of 1905, which reads as follows: "No person or municipality shall flow or discharge sewage into any drain, brook, creek, or river from which a public drinking-water supply is taken, unless the same shall have been passed through some well-known system of sewage purification approved by the State Board of Health; and the continual flow and discharge of such sewage may be enjoined upon application of any person." A violation of this statute is made a misdemeanor, punishable by fine and imprisonment by section 3858.

The defendant contends, as a matter of law, that it can not be restrained from emptying its raw sewage in the river in question, because that, prior to the enactment of the statute forbidding it, it had acquired the prescriptive right to do so, and that consequently the statute, if it was ever intended to apply to such a case, is void to the extent that it undertakes to deprive the defendant of a valuable property right without making compensation therefor.

The propositions sought to be maintained in their brief by the learned counsel for defendant are:

(1) Whether the right to pollute a stream can be acquired by prescription; and, if it can,

(2) Whether, when such right has been acquired, it can be destroyed by a statute, making no provision for compensation therefor.

(199) The statute upon which this action is founded is one of several laws enacted in pursuance of what appears to be an intelligent purpose upon the part of the General Assembly to protect the health and well-being of the citizens of the State by guarding the watersheds and public water supplies of the cities and towns of the State from contamination, as far as possible.

The value and wisdom of such legislation is established by experience and needs no defense at our hands, even if it was a subject within our domain. It is in line with the most enlightened legislation of Great Britain and of States of this Union. The preservation of the public health, as well as public morals, is a duty devolving on the State, the discharge of which is denominated an exercise of the police power, and it is under such power that such legislation is sustained and enforced.

This particular statute was considered by this Court in Durham v. CottonMills, 141 N.C. 615, and 144 N.C. 706, and its constitutionality sustained at all points in well-considered opinions by Mr. Justice Walker, in which practically all the authorities are cited and discussed. It is unnecessary to review them here.

The only point not considered in those opinions is the contention of the defendant that by over twenty years continuous usage it has acquired a prescriptive right to empty its raw sewage into the river, with which the State has no power to interfere without making provision for compensation.

There are authorities to the effect that as against a private individual lower down on the stream the right to pollute it to a greater extent than is permissible at common law may be acquired by prescription by an upper riparian owner. But we are not now dealing with the rights of riparian owners, but with the rights of the public at large as represented by the General Assembly.

It is well settled that, unless by legislative enactment, no title can be acquired against the public by user alone, nor lost to the public by nonuser. Commonwealth v. Moorehead, 4 Am. St., 601, and cases cited, 22 A. E., 1190. Public rights are never destroyed by long-continued encroachments or permissive trespasses. If it is in the power of the General Assembly, in the exercise of its police power, as we have held in the Durham case, to enact this law and make its violation a misdemeanor it necessarily follows that the defendant could not acquire a right by prescription which would exempt it from the operation (200) of the statute.

Whether the pollution of this stream by emptying raw sewage into it was a nuisance at common law, it is unnecessary to consider.

Since the passage of the statute it may be classified as a public nuisance unless the provisions of the act be complied with. The learned counsel properly admits that if a stream should be polluted to the extent and under such circumstances as to create a public nuisance, then no prescription would justify such nuisance.

The power of the General Assembly to pass all needful laws, except when barred by constitutional restrictions, is plenary, and the Legislature has the power to declare places or practices to the detriment of the health, morals or welfare of the community, public nuisances, although not such at common law.

This seems to be well settled. Mugler v. Kansas, 123 U.S. 623; Lawtonv. Steel, 119 N.Y. 226; S. v. Tower, 68 L.R.A., 406.

The right which the State is seeking to enforce through this statute is a public right, a right to protect the health of the people of the State. As against such public rights, prescription can not run. There is no such thing as a prescriptive right to maintain a public nuisance. Joyce on Nuisances, sec. 51; 29 Cyc., 1207; Jones on Easements, sec. 178; McMoran Willis on Sewers and Drains, 233.

In Com. v. Upton, 6 Grey (Mass.), 473-476, the Court says: "It is therefore immaterial, so far as the government is concerned, in the administration of the law for the general welfare, how long a noxious practice may have prevailed or illegal acts been persisted in. Easements may be created in lands and the rights of the individuals may be wholly changed by adverse use and enjoyment if it is sufficiently protracted, but lapse of time does not equally affect the rights of the State." See, also, cases collected 3 A. E. Ann. Cases, 25. The General Assembly can not grant a right to maintain a public nuisance of this character which a succeeding General Assembly could not (201) repeal.

The State can not divest itself of the right to exercise its police power for the general good. Such power is conceded to be one inherent in the State for the protection of the public, and of such character that the State may not waive or divest itself of the right to exercise it. S. v.Holman, 104 N.C. 861; 1 Abbott on Mun. Corp., 209; In re O'Brien, 1 A. E. Ann. Cases, 373; Portland v. Cook, 48 Or. 550; Miles City v. Board ofHealth, 25 L.R.A., 591.

As said by the Supreme Court in Stone v. Mississippi, 101 U.S. 841, "All agree that the Legislature can not bargain away the police power of the State."

It follows, from these and many other authorities, that the defendant could not acquire any right by prescription or otherwise which would prevent the General Assembly of the State at any time from exercising its police power to regulate the discharge of sewage into the French Broad River.

The issue attempted to be raised by the pleadings that the stream is not dangerously polluted by the raw sewage poured into it from a large mill settlement working hundreds of operatives can be of no avail to defendant.

That is a matter for the judgment of the Legislature. Such legislation is preventive, and to limit it to cases where actual injury is shown to have occurred would be to deprive it of its most effective force. To be of value such laws must be able to restrain acts which have a tendency to produce public injury.

The police power of a State is to be exercised for the general good, and every intendment is to be made in favor of the lawfulness of regulations, such as the statute under consideration, intended to protect the public health and safety. It is not the province of the judicial authority, except in clear cases, to obstruct or interfere with the exercise of such power.

The General Assembly, chosen biennially by the people, are better judges than we are of what regulations are necessary to promote the public health and comfort of the citizens of the State.

The Supreme Court of the United States, which has always (202) upheld every reasonable exercise of the police power of the States, has said: "The possession and enjoyment of all rights are subject to such reasonable conditions as may be deemed by the governing authority of the country essential to the safety, health, peace, good order and morals of the community. Even liberty itself, the greatest of all rights, is not an unrestricted license to act according to one's own will." Crowley v. Christensen, 137 U.S. 86. If a regulation enacted by the Legislature for the protection of the public health bears, as this does, a real and substantial relation to that object, the courts will not strike it down, although it may appear to bear hard upon some individual.

The second proposition of the defendant, that the right to drain its raw sewage into the river can not be taken from it without compensation, necessarily falls with the first.

As the defendant could acquire no vested right of the character claimed, there is no taking of property for a public use, and nothing to compensate the defendant for.

The State takes no right from the defendant, but only prescribes the conditions upon which it may use the river for its private purposes.

The present case is governed by principles that do not at all involve an exercise of the power of eminent domain. As said by the Supreme Court of the United States in Mugler v. Kansas, 123 U.S. 623: "The power which the States have of prohibiting such use by individuals of their property as will be prejudicial to the health, the morals, or the safety of the public, is not — and, consistently with the existence and safety of organized society, can not be — burdened with the condition that the State must compensate such individual owners for pecuniary losses they must sustain by reason of their not being permitted, by a noxious use of their property, to inflict injury upon the community." See, also, Sedgewick on Statutory and Const. Law, 434, 435; Reduction Co. v. Sanitary Works, 199 U.S. 307;Durham v. Cotton Mills, 141 N.C. 640.

The judgment of the Superior Court is

Affirmed.

Cited: Lenoir v. Crabtree, 158 N.C. 360; Board of Health v. Comrs.,173 N.C. 253, 254; Lawrence v. Nissen, ibid., 362; S. v. Perley, ibid., 786.

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