City Of Durham v. Mills

• Decision Date: 27 May 1907
• Citation: 144 N.C. 705,57 S.E. 465
• Parties: CITY OF DURHAM et al. v. ENO COTTON MILLS.
• Court: North Carolina Supreme Court

57 S.E. 465

144 N.C. 705

CITY OF DURHAM et al.

v.ENO COTTON MILLS.

Supreme Court of North Carolina.

May 27, 1907.

1. Waters and Water Courses—Pollution —Sewage—What Constitutes.

Dyestuff and feculent matter from open water-closets washed into a river by the surface drainage do not constitute sewage, within Revisal 1905, § 3051, prohibiting the discharge of sewage into any stream from which a public drinking supply is taken, unless the same shall have been passed through some well-known system of sewage purification, etc., and providing that the continual discharge thereof may be enjoined.

2. Same—Injunction.

Revisal 1905, | 3052, requires all industrial settlements located on the shed of any public drinking supply, not having a system of sewerage, to maintain a tub system for collecting and removing all human excrement and by another section a violation of section 3052 is made punishable as a misdemeanor. Section 3862 declares that, if any person shall corrupt or pollute any stream which is the source of public water supply, he shall be guilty of a misdemeanor. Held, that an injunction would not lie to enjoin the pollution of a stream, which was the public drinking supply of a city, by permitting dyestuff and feculent matter from open water-closets to be carried into the stream by surface drainage, unless it was first shown that by reason thereof the water was contaminated at the city's intake.

3. Appeal — Determination of Cause — Amendment of Judgment.

Where it is apparent from the opinion of the Supreme Court that its conclusion was that an injunction would lie to restrain the pollution of a stream by sewage, and that an injunction would lie to restrain certain other acts tending to pollute the stream only upon a showing that they constituted a nuisance, but in formulating the judgment the court was not sufficiently advised of the effect of their conclusion upon the ultimate rights of the parties, with respect to the two propositions involved, so that the injunction granted by the lower court was permitted, in affirming the order, to have a broader scope than was intended, the judgment will be corrected on appeal so as to express the true conclusion of the court.

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

Action by city of Durham and others against the Eno Cotton Mills. From the judgment, defendant appeals. Former judgment of the Supreme Court so modified as to affirm in part and reverse in part an order made upon the first hearing by the judge. Judgment appealed from set aside, with directions to submit the issues raised by the pleadings to a jury, and proceed further in the cause according to law.

This case was before the court at a former term, and is reported in 141 N. C. 615, 54 S. E. 45.3. When the case came on to be heard at March term of the superior court, it was adjudged that the injunction issued by Judge Ferguson be made perpetual. There was no trial by jury, and no waiver thereof in writing by the parties; nor was there any additional findings of fact made by the presiding judge. The judgment perpetuating theinjunction was based entirely upon the findings of Judge Ferguson, his order, and the opinion and order of this court. The defendant excepted to the judgment of the superior court on the ground that section 3051 of the Revisal of 1005 embraces only sewage, and that the flow of that only can be enjoined. That dyestuffs are not embraced by the statute, and the commission of the defendant's acts in respect to them is not per se a nuisance, and not enjoined, and, if this is so, the defendant has the right to a trial by jury upon the issues raised by the pleadings. The defendant did not then demand a trial by jury, but reserved its right to the same. The court offered to allow the defendant a trial by jury, but the offer was refused. The defendant also excepted because section 3052 of the Revisal of 1005 has been amended by the act of 3907, and by that amendment the plaintiff has no longer any right of injunction to enforce the use of the tub system alone, and to restrain the deposit of faecal matter, which is not sewage, in any other way than is provided by the law as it now is. From the judgment, the defendant appealed.

John W. Graham, S. M. Gattis, and Frank Nash, for appellant.

R. P. Reade and Fuller & Fuller, for appellees.

WALKER, J. It would have been better and more in accordance with correct procedure if the defendant had accepted the offer of a jury trial and raised the questions now made at the final hearing, when all of the disputed facts would have been settled, and the case disposed of upon its merits. We directed the injunction or restraining order of Judge Ferguson to be continued only to the hearing, and it was error in the court below to continue it perpetually. In this respect, the judgment should have followed exactly the order of this court As the answer came in after our decision was rendered, his honor, perhaps, was of the opinion that the admission of the defendant therein that it did dispose of its dyestuff and maintain the privies as alleged in the complaint, though it denied that the water of Eno river at the Durham intake was polluted thereby, was sufficient to warrant a perpetual injunction, as the dyestuff and the faecal matter from the privies are to be considered as "sewage, " within the meaning of section 3051 of the Revisal of 1905, or that, by sections 3045, 3052, and 3862. the acts of the defendant with respect to them were prohibited to such an extent as to give the plaintiff a right to an injunction without first showing that by reason of the said conduct of the defendant with respect to them the water of the stream was actually contaminated at the intake. Neither of these views was the correct one. We do not think that the dyestuff or the faecal matter from the privies, which was not passed through the defendant's sewer, could be re garded as sewage, within the Intent and

meaning of section 3051. It is confined, under the facts of the case, to the liquid and solid matter flowing from the water-closets through the sewer and drain to the river, and that was our conclusion at the former hearing of this case, as is apparent from the opinion. Some courts have construed "sewage" to mean excreted, as well as waste, refuse or foul matter, carried off, in sewers and drains, whether open or closed, by the water flowing therein. Morgan v. Danbury, 07 Conn. 484, 35 Atl. 499; Winchell v. Waukesha, 110 Wis. 101, 85 N. W. 668; Clay v. Grand Rapids, 60 Mich. 451, 27 N. W. 596. In Sutton v. Mayor, 27 L. J. (Eq. 1858) 741, the Vice Chancellor says that, "in the common sense of the term 'sewer, ' it means a large and generally, though not always, underground passage (or conduit) for fluid and feculent matter, from a house or houses to some other locality, " usually the place of discharge. Other courts have defined a sewer to be a closed or covered waterway for conveying and discharging filth, refuse, and foul matter, liquid or solid, while ditches are drains which are or may be open and so arranged as to take away surface water. State Board of Health v. Jersey City, 55 N. J. Eq. 116, 35 Atl. 835; 7 Words & Phrases, 6457 et seq. Whatever may be the true and definite meaning of the word, If it has one, either generally or when ascertained from its use in any given connection, we think the Legislature did not intend, when the word was used in section 3051, that it should embrace dye-stuff, and feculent matter, other than sewage from the water-closets in the mill, as the defendant dealt with them, but only such deleterious matter as was carried by conduits of some kind into the river or other source of public supply, and would, therefore, In such large and concentrated quantities, most probably pollute the stream at the intake. It seems, from the finding of Judge Ferguson, that the defendant once in each week "hauled off and buried" the excrement from the open privies of its operatives; but it is also found that not only the dyestuffs, but the feculent matter from the open privies, are washed into the river by the surface drainage and contaminate the same. However this may be, we are satisfied that the Legislature did not intend to include within the prohibition of section 3051, under the name of "sewage, " any matter carried Into the supplying water course by mere surface washing. It is true that by section 3052 the failure of an industrial settlement not having a system of sewerage to provide and maintain a tub system for collecting and removing human excrement from the shed of any public water supply is declared to be unlawful and criminal, and is punishable as a misdemeanor, and it is also true that by section 3862 it is declared unlawful to corrupt or pollute any stream which is the source of supply tothe public of water for drinking purposes, and it is also made criminal and punishable as a misdemeanor. The acts and omissions thus described in those two sections may be public nuisances; but, even if they are, the plaintiff is not entitled to an injunction in respect to them, unless it can show special damage or such a pollution of the river as would render the water at the intake, near Durham, and not merely at the outlet, near Hillsboro, unfit for the uses to which it may be applied. The plaintiff must make out a case, not of theoretical and possible, but of actual and real, injury, present or certainly impending.

The court, when stating the governing principle of such cases, in Brookline v. Mackintosh, 133 Mass. 215, said: "The plaintiff contends that the statute, in prohibiting drainage or refuse matter from being put into the river so as to corrupt or Impair the quality of water, makes it an offense to do so, not only where the water supply Is taken, but also at or near the factory, and that the evidence shows that the water is there corrupted. Even if this construction is correct, which we do not decide, the plaintiff cannot ask an injunction on that...