State v. K. W. Morse

• Decision Date: 08 May 1911
• Parties: STATE v. K. W. MORSE
• Court: Vermont Supreme Court

80 A. 189

84 Vt. 387

STATE v. K. W. MORSE

Supreme Court of Vermont

May 8, 1911

November Term, 1910.

INFORMATION for bathing in Berlin Pond in violation of an order of the State Board of Health. Trial by jury waived, and trial by court on an agreed statement of facts, at the September Term, 1910, Washington County, Hall J., presiding. The respondent, pro forma, adjudged guilty and fined. The respondent excepted. The opinion states the case.

There is no error and the respondent takes nothing. Let execution be done.

Richard A. Hoar for the respondent.

Present ROWELL, C. J., MUNSON, WATSON, HASELTON, AND POWERS, JJ.

OPINION

POWERS

The respondent was prosecuted for bathing in the waters of Berlin Pond in violation of a regulation of the State Board of Health. An agreed statement of facts was filed in the court below, from which it appears that Berlin Pond is a natural body of boatable water lying in the town of Berlin, which town adjoins the city of Montpelier. It has an area of about three hundred and sixty acres. The city of Montpelier takes its water supply from this pond,--its intake pipe being located in the brook which forms the outlet, at a point some two miles below the pond. This water system has been in operation over twenty years. The shore of the pond is owned by various parties,--one of which is the city of Montpelier--and is occupied in part by summer cottagers and pleasure-resort proprietors.

The respondent, at the time in question, was the lessee of a certain cottage and the land connected therewith, which land lay along and included a part of the shore of the pond. It appears that the State Board of Health, had, at the request of the common council of the city, made an examination of the conditions surrounding Berlin Pond, and had reported those conditions as found together with its conclusions thereon,--to the effect that the water supply of the city was in constant danger of such pollution as might at any time result in serious disaster to the city. Two remedies were suggested: One, the protection of the pond and its tributaries from pollution; the other, the adoption of some method of purification. The latter was advised. After making some suggestions regarding the expense of the establishment of a filtration plant, the communication which the Board sent to the council, continues: "Pending action on this suggestion, and until you can have a filtration plant in operation, * * * this Board * * * would make and publish the following orders, rules and regulations. * * * ". These regulations were forwarded June 24, 1903, and on the 27th were posted in the three public places in the town of Berlin there being no newspaper published in that town. This action of the Board was taken under No. 115, Acts of 1902. One of the regulations, so promulgated, provided that no person should bathe or swim in Berlin Pond or its tributaries or outlet. On August 1, 1909, the respondent entered the waters of the pond opposite the premises occupied by him as above stated and swam about therein.

Upon these facts, the court below pro forma adjudged the respondent guilty and sentenced him to pay a fine and costs. To this judgment the respondent excepted.

It was conceded below that the respondent could, if permitted, show that the city of Montpelier had never built a filtration plant as suggested by the Board; and it is argued that the posting of the pond was provisional and temporary, merely; that the effect of the action taken was to give the city a reasonable time within which to install such plant, during which time it would have the benefit of the protection afforded by the regulations, but at the expiration of which the legal force thereof would be spent,--the city having forfeited their right to protection by their own neglect. And it is insisted that a reasonable time has long since elapsed, and therefore the prohibition was no longer in force and the riparian owners were restored to all their former rights and privileges, though the posters may have remained in place.

We cannot adopt this view. Though it appears to have been the expectation of the Board that the city would undertake to install a filtration plant in accordance with the recommendation, in no fair sense was its official action conditioned upon such undertaking. If the question was one between the Board and the city as a municipality, there would be some force in this argument. But this is not a matter inter partes; the order was not made for the benefit of the city in its corporate capacity, but for the protection of the people of the community both individually and collectively; indeed the benefit of the order was not to be confined to those who dwelt within the borders of the city, but was to be available to all who might be temporarily therein or otherwise brought into contact with its people.

And there is no advantage to the respondent in the other concession that he would, if allowed, testify that he did not know that the pond was posted. The requirements of the statute were sufficiently complied with and no actual notice was necessary. Nor was it necessary for a member of the Board actually to erect the notice; this might properly be entrusted to another. Nor did the omission to file the affidavit specified by section 3 of the act referred to affect the legality of the notice. That requirement was obviously for the purpose of evidence only.

Equally without merit is the suggestion that conditions are shown to be such that other sources of contamination exist, left untouched by the regulations of the Board, more serious than those here involved. The fact that others are befouling these waters affords no excuse or defense to the respondent. Indianapolis Water Co. v. Am. Strawboard Co., 57 F. 1000; Baltimore v. Warren Mfg. Co., 59 Md. 96. Coming now to the more serious and important question in the case--the validity of the regulation--the position of the respondent is that it is utterly invalid and void, for to give effect to it would be to deprive him of his property without compensation and without due process, contrary to the guaranties of the organic law.

The respondent relies much upon People v. Hulbert, 131 Mich. 156, 100 Am. St. Rep. 588, 91 N.W. 211, 64 L.R.A. 265, a case in its facts surprisingly like the case in hand. There, as here, one was convicted of bathing in the waters of a pond or lake from which a city took its water supply. A statute made it a criminal offence to pollute such waters. The respondent stood as a riparian owner. The court held that as such owner he had a right to a reasonable use of the waters of the lake, that such use included the right to bathe and swim therein; and that this reasonable use could not be taken away by the police power of the state. With the conclusion reached in that case we cannot agree. That a riparian owner has a right to the reasonable use of the water of such a pond, we agree; that this ordinarily carries the right to bathe and swim therein, we agree; that this right is a property right, we agree. This right is an incident to the ownership of the land. It is to be observed, however, that it is not primary, but incidental. The land is the principal, the water the incident. In other words, the water goes with the land, and not the land with the water. Avery v. Vt. Elec. Co., 75 Vt. 235, 242, 54 A. 179, 59 L.R.A. 817, 98 Am. St. Rep. 818. Can it be said that it is always and under all circumstances a reasonable use of such waters to bathe therein? Reasonable use varies with circumstances; it depends among other things, upon what use is made of the water by the lower owners, whose equal rights must be respected. Lawrie v. Silsby, 82 Vt. 505, 74 A. 94. If bathing in a pond from which a city takes its water supply contaminates, or in circumstances reasonably to be apprehended may contaminate such waters, thereby endangering the health of the community, can it then be said that the riparian owner is making a reasonable use of his incidental right? The answer must be negative. Such use in such circumstances may be prohibited in a valid exercise of the police power. The owner's rights are not then "taken" in a constitutional sense; or, if this statement savors too much of refinement of reasoning, as some suggest, the "taking" is not such as the Constitution prohibits. The beneficial use of the property is curtailed in some measure but all the other incidents of ownership are left unimpaired. The fact that this is a property right does not determine the question. There remains the question whether the promulgation and enforcement of the regulation is a legitimate exercise of the police power. For, as we suppose everyone now agrees, the possession and enjoyment by the individual of all his rights, even that of liberty itself, are subject to such reasonable regulations and restraints as are essential to the preservation of the health, safety and welfare of the community. The proposition is well stated in Wood, Nuisances, (3rd Ed.) § 1: "It is a part of the great social compact to which every person is a party--a fundamental and essential principle in every civilized community that every person yields a portion of his right of absolute dominion and use of his own property in recognition of an obedience to the rights of others, so that others may also enjoy their property without unreasonable hurt or hinderance." It follows, then, that whenever any of the rights of the individual come into conflict with those of the public which concern the interests named, the former must yield and the latter prevail.

The enforcement and protection of these paramount rights is the proper function of the police power. This power inheres in the governing body--the Legislature. There it abides, and with it of...