City of Bellevue v. Daly

• Citation: 14 Idaho 545,94 P. 1036
• Parties: CITY OF BELLEVUE, Respondent, v. M. J. DALY, Appellant
• Decision Date: 19 March 1908
• Court: Idaho Supreme Court

94 P. 1036

14 Idaho 545

CITY OF BELLEVUE, Respondent, v. M. J. DALY, Appellant

Supreme Court of Idaho

March 19, 1908

NUISANCE-INJUNCTION TO RESTRAIN NUISANCE-EASEMENT OR RIGHT OF WAY-PROTECTION AND MAINTENANCE OF SAME.

1. As a general principle of law it is the duty of an individual or the public entitled to an easement or right of way over the lands of another to keep up, maintain and protect such easement or right of way, and the presumption as to such duty and obligation arises as one of law, and where it is sought to maintain an action on the theory that such duty rests upon the owner of the fee, it is necessary for the plaintiff to plead and prove the facts from which the duty or obligation arises.

2. The fact that a municipality uses water that it conveys to the place of use through a ditch that runs across the field of another does not of itself entitle the municipality to maintain an action against the owner of the land for a perpetual injunction restraining him from allowing his cattle to feed and graze in the field along the banks of the ditch and to cross over the same or wade through the waters thereof.

3. ID.-In such case the primary duty of fencing or protecting the ditch and the waters therein from contamination and impurities rests upon the owner of the easement, and not upon the owner of the fee.

4. The principle that every person shall so use and enjoy his own property, however absolute and unqualified his title, that his use of it shall not be injurious to the equal enjoyment of others having an equal and like right to the enjoyment of their property, nor injurious to the equal rights of the public, must always be considered and applied in the light of that other principle that every man has a right to the natural use and enjoyment of his own property, and that if while lawfully in the enjoyment of such use without negligence or malice on his part, an unavoidable loss occurs to his neighbors, the same is damnum absque injuria. The rightful use of one's own land may, in some instances cause damage to another and yet constitute no legal wrong and afford the damaged person no remedy.

(Syllabus by the court.)

APPEAL from the District Court of the Fourth Judicial District for Blaine County. Hon. Edward A. Walters, Judge.

Action by the plaintiff for a perpetual injunction. Judgment for the plaintiff and defendant appeals. Reversed.

Judgment of the trial court reversed and cause remanded, with directions. Costs awarded in favor of appellant.

Ensign & Ensign, and R. F. Buller, for Appellant.

Where the injury complained of is such only as is incident to lawful business conducted in the ordinary way, equity will not interfere. (High on Injunction, 4th ed., sec. 752.)

Equity will not interfere to prevent or abate as a nuisance everything that works hurt, inconvenience or damage; but only where the injury is irreparable. (Hilliard on Injunctions, sec. 23, p. 19; Wallace v. McVey, 6 Ind. 300.)

Where a party has a full and complete remedy in his own hands as the plaintiff had in this case, which he neglects or refuses to use, he has no standing in any court, whether of equity or otherwise. (Beach on Injunction, sec. 1077, note 4; Dumnesnil v. Dupont, 18 B. Mon. 800, 68 Am. Dec. 750; Attorney General v. Bay State Brick Co., 115 Mass. 431-438.)

It was not only the unquestioned right, but the duty, of the city authorities to fence or otherwise protect the ditch if it needed protection. If they owned the right of way for the ditch, they had a perfect right to do whatever was necessary to protect it without Daly's permission, which however, they never asked. (Adams v. Emerson, 6 Pick. (Mass.) 57; Wilson v. Boise City, 6 Idaho 391, 55 P. 887; Tucker v. Tower, 9 Pick. (Mass.) 109, 19 Am. Dec. 350.)

Every man has a right to the natural use and enjoyment of his own property; and if, while lawfully in the enjoyment of such use without negligence or malice on his part, an unavoidable loss occurs to his neighbor, it is damnum absque injuria. (Beach on Injunction, 1117, note 1; Barnard v. Shirley, 135 Ind. 547, 41 Am. St. Rep. 454, 34 N.E. 600, 35 N.E. 117, 24 L. R. A. 568; Pennsylvania Coal Co. v. Sanderson, 113 Pa. 126, 57 Am. Rep. 445, 6 A. 453.)

An injunction will not be granted when it will operate inequitably or contrary to the real justice of the case. (Troy & B. R. R. Co. v. Boston etc. R. R. Co., 86 N.Y. 107.)

McFadden & Brodhead, for Respondent.

Courts of equity in this state have the power to restrain and abate a public nuisance. (Redway v. Moore, 3 Idaho 312, 29 P. 104; 30 Am. & Eng. Ency. of Law, 385, and cases there cited.)

The appellant must so use his property as not to interfere with the rights of others. The community of Bellevue has the right to have its water for domestic and culinary use come to it as pure as natural conditions may permit. (People v. Truckee Lumber Co., 116 Cal. 398, 58 Am. St. Rep. 183, 48 P. 374, 39 L. R. A. 581; People v. Burtleson, 14 Utah 258, 47 P. 87; Cooley Const. Lim., 6th ed., 705.)

AILSHIE, C. J. Stewart, J., concurs. Sullivan, J., took no part in the decision.

OPINION

AILSHIE, C. J.

This action was commenced by the plaintiff praying for a perpetual injunction against the defendant, restraining him from the commission of certain acts alleged in the complaint. The allegations of the complaint are as follows:

"1. That plaintiff is a municipal corporation organized and existing under the laws of the state of Idaho.

"2. That said city has a population of about 1,000 inhabitants, who are supplied with water for drinking, culinary and other domestic purposes, from Seaman's creek, a small stream, flowing in a westerly direction toward the said city; that said water is diverted from said stream by means of a ditch and conveyed to a reservoir and from thence to said city by means of pipes.

"3. That said defendant is the owner of certain land through a portion of which said ditch is constructed, and said defendant is also the owner of a large number of cattle which are allowed by the defendant to range on that portion of his said land through which that said ditch runs; that said cattle are accustomed to wade in the water of said ditch and feed along its banks, the excretion from said cattle finding its way into said ditch and thereby polluting the water carried therein to such an extent that the same is unfit for drinking and culinary purposes, and thereby endangering the health of the inhabitants of said city.

"4. That the ranging of said cattle as aforesaid is a menace to the health of the inhabitants of the city of Bellevue, and is thereby a public nuisance.

"5. That said defendant has been notified to discontinue the practice of allowing his cattle to range along and through said ditch as aforesaid, but he totally disregards said notification, and will, unless restrained by an order of this court, continue to allow his cattle to so range as aforesaid.

"That plaintiff has no plain, speedy, and adequate remedy at law in the premises."

On this complaint a temporary injunction was issued. The defendant demurred to the complaint on the ground that it does not state facts sufficient to constitute a cause of action. The demurrer was overruled by the court and defendant thereupon answered, admitting the ownership of the land and the cattle mentioned in the complaint, and denying that the ranging and grazing of his cattle on the lands belonging to him and through which the ditch runs is or was a nuisance or menace to the health of the inhabitants of the plaintiff municipality, and denied that he had committed or permitted any act that constituted a nuisance or injured the health of the inhabitants of the plaintiff corporation. He also denied that he was the owner of the ditch or had any interest therein whatever, and denied that it was his duty to fence or in any way protect the ditch in question. The case went to trial before the court without a jury, and the court made findings of fact to the same effect as contained in the allegations of the complaint, and thereupon ordered a perpetual injunction against the...