City of Durham v. Eno Cotton Mills

Decision Date28 May 1906
PartiesCITY OF DURHAM v. ENO COTTON MILLS.
CourtNorth Carolina Supreme Court

Appeal from Superior Court, Durham County; Ferguson, Judge.

Action by the city of Durham against the Eno Cotton Mills. From a decree in favor of complainant, defendant appeals. Affirmed.

Civil action, heard at chambers upon a motion for an injunction. The action was brought for the purpose of enjoining the defendant from emptying its sewage into the waters of the Eno river, from which stream the plaintiffs allege the water supply of the city of Durham is obtained partly in the summer months. The material parts of the complaint are as follows That the defendant owns and operates a cotton factory located about 300 feet from Eno river, at the town of Hillsboro, in Orange county, N. C., and employs in and about its factory about 300 operatives; that said defendant maintains water-closets in its said factory for the use of its said operatives, and the deposits of human excrement therefrom are flowed and discharged through an 8 inch terra cotta sewer pipe directly into the Eno river, at a point about 300 feet from said factory; that at times said sewer pipe becomes choked and stopped up, and then said deposits of excrement and sewage are run through an open ditch and a small drain into said Eno river at about the point of discharge of said sewer pipe above mentioned; that it also maintains, in connection with its said closets and system of sewage, a manhole or brick chamber, which is just outside of its said factory, which said manhole or brick chamber frequently overflows on account of the choked condition of the said discharge pipe, and the overflow therefrom is deposited on the ground at and around said manhole, and is washed into said Eno river; that said defendant also discharges large quantities of dye waste on the ground just outside of its said factory, which flows and empties into said river near the point where defendant's said sewer pipe empties; that said defendant owns about 60 dwelling houses, located on both sides of said Eno river, and on its watershed, which are occupied by the operatives in defendant's said factory and maintains in connection with said dwelling houses a large number of open privies without a tub system, some of which said privies are within 100 feet of said Eno river, and that the fecal matter from said privies is washed by the rains into the said Eno river; that the said city of Durham and its inhabitants are now and have been for the past 17 or 18 years supplied with drinking water from a plant which is located on Eno river at a point a few miles below defendant's said factory, and that the public drinking water supply of the city of Durham and its inhabitants is taken from said Eno river at said plant; that the city of Durham has demanded of the said defendant that it provide some other method of disposing of its sewage and dye waste and other dangerous and foul matter, and that it discontinue to empty and discharge the same into the said Eno river, all of which said defendant has refused and still refuses to do but, on the contrary, willfully, negligently, unlawfully, and in disregard of the comfort, safety, and health of the inhabitants of the city of Durham and of the plaintiff, T. A. Mann, is flowing and discharging its raw sewage into said Eno river, from which the public drinking water supply of the city of Durham is taken, without having said sewage passed through some well-known system of sewage purification approved by the state board of health, or any other system of purification, and has avowed its purpose to continue to do so; that, as plaintiffs are informed and believe, the waters of the said Eno river have become and are now being polluted and made unfit for drinking purposes, and that the health of the inhabitants of the city of Durham and of the plaintiff, T. A. Mann, are seriously menaced because of the acts of said defendant complained of above. The prayer is for a perpetual injunction. His honor granted a restraining order, with an order to show cause why an injunction to the hearing should not be issued.

The plaintiff, in support of the allegations of its complaint, filed several affidavits of physicians to the effect that the sewage, dye waste, and other deleterious matter which are discharged into the river from the defendant's premises at Hillsboro, not only pollute the stream at that place, but will, in the opinion of the witnesses, pollute it at the place of intake near Durham where the plant of the waterworks company is located. Affidavits were also filed which tended to show that large quantities of feculent matter and dye waste are daily discharged into the river from the defendant's premises. It is not necessary to set forth the statements of these affidavits more fully, as they are quite sufficient to show that the water of the Eno river at Hillsboro is polluted by the acts of the defendant, and that one of the principal sources of such pollution is the daily deposit into the river of the contents of the defendant's sewer, and this is not only not denied by the defendant, but expressly admitted. One physician, whose affidavit was read by the plaintiff, expressed the opinion that the conditions at defendant's mill had much to do with the presence of typhoid fever in Durham and with the impurities found in the water supply of the said city and that, if there should be typhoid fever among the defendant's mill operatives, it is more than probable that it would be communicated to the inhabitants of Durham through the water and cause a serious epidemic, if present conditions are allowed to be continued. No evidence was offered by plaintiff tending to show that an analysis of any kind had been made of the water at the point of the intake near Durham to ascertain if there had been, in fact, any pollution of the stream at that place. The defendant, while admitting the pollution of the river at its mill site near Hillsboro, denies that it extends to the waters at the intake of the water company, near Durham. In support of its denial it offers proof of the following facts: The volume of sewage conveyed into the river is very small compared with the volume of water into which it flows. The sewage pipe is only 8 inches in diameter and empties 18 miles above the water company's intake. The excreta are carried through the pipe by the flushing of the closets with fresh water, to the river 200 yards distant, and by the time of arrival at the outlet of the sewer the solid matter is practically dissolved. The sewage then passes immediately into the "upper reaches of a pond," which extends 1 1/2 miles below the mill, and there are two other ponds below, and four backwaters of former ponds, with their dams now broken. There is necessarily sedimentation, which is a means of precipitation recognized by all the authorities upon the subject. In the stretch below the defendant's discharge pipe and the intake of the water company are numerous spring branches, creeks, and brooks of fresh and pure water flowing into the Eno river millions of gallons every 24 hours. Thus dilution takes place, another recognized means of precipitation. That the flow of sewage is not only small, as already alleged, but is never constant. The dye stuffs are discharged into an open drain at said mills after their coloring matter has been as much as possible removed, and little of the dye makes its way to the river, and not enough to discolor the water, and that none of it, as defendant is informed, would be injurious to health. That a flowing stream constantly renews from its sources and the accessions from other water courses, and the interruptions of the current of this river by ponds and backwaters as described would give the water polluted at the mouth of the sewer and drain ample time, considering the distance to be traversed, to become chemically and bacteriologically pure before it reaches the intake. The defendant also alleges that while the water company's plant was located on the Eno river before its mill was built near Hillsboro yet that water was not taken from the stream for the purpose of supplying the city of Durham until three or four years after the defendant began to discharge sewage into the river and otherwise to use its premises as stated in the complaint. It further avows that the plaintiff could have an abundant supply of pure water from Nancy Rhodes' Branch, if the water company had not carelessly and negligently permitted its pond, which is supplied by that branch, to fill so that the volume of water it could have held was greatly diminished, and that the water company or the city of Durham can easily obtain a sufficient supply of pure water from two or more creeks conveniently located. That a plant for purifying sewage could be erected at defendant's mill only at great expense, and would add nothing to the purity of the water at the intake of the water company, while the water company could at little expense rid the water of any impurities which it might gather as it flows and carry along with it to the intake. It is further averred that the water company has not a sufficient settling reservoir at its plant. There are other matters stated in the affidavits of the respective parties, but it is not necessary that they should be set forth.

The presiding judge made the following finding of facts and the following order thereon: "This cause coming on to be heard by consent in the city of Durham, on the 10th day of February, 1906, and being heard upon the affidavits filed after argument of counsel, it appears to me from said affidavits filed in the cause: That the Durham Water Company, a corporation, supplies water to the city of Durham for the use of its citizens for drinking and other...

To continue reading

Request your trial
1 cases
  • McDonough v. Russell-Miller Milling Company, a Corp.
    • United States
    • North Dakota Supreme Court
    • January 25, 1921
    ... ...          The ... verdict is excessive. Durham v. Eno Cotton Mills (N. C.) ... 7 L.R.A. (N.S.) 321, 54 S.E. 453; 27 R ... riparian owners upon the Heart river within the limits of the ... city of Dickinson. The plaintiff owns a tract of land ... traversed by the ... ...

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT