City of Frankfort v. Slipher

• Decision Date: 19 June 1928
• Docket Number: No. 13057.,13057.
• Parties: CITY OF FRANKFORT v. SLIPHER.
• Court: Indiana Appellate Court

88 Ind.App. 356

162 N.E. 241

CITY OF FRANKFORT

v.SLIPHER.

No. 13057.

Appellate Court of Indiana, in Banc.

June 19, 1928.

Appeal from Tipton Circuit Court; C. W. Mount, Judge.

Action by Jay D. Slipher against the City of Frankfort. Judgment for plaintiff, and defendant appeals. Affirmed.

Kemp, Kemp & Russell, of Tipton, and Harker & Irwin, of Frankfort, for appellant.

Gifford & Gifford, of Tipton, and Wm. Robison and Thomas M. Ryan, both of Frankfort, for appellee.

McMAHAN, J.

This is an action by Jay D. Slipher against the city of Frankfort for damages growing out of the pollution of Prairie creek by the alleged unlawful deposit of sewage therein. From a judgment in favor of the plaintiff for damages, the city appeals.

The court found the facts specially, and stated conclusions of law thereon. The facts as found are in substance as follows:

Appellee is, and since 1911 has been, the owner of a farm of 185 acres lying a short distance north of Frankfort. A natural water course, known as South Fork of Wild Cat creek, forms the north boundary of the farm for a distance of about 100 rods. Prairie creek a natural water course, has its source south of Frankfort, flows north through the city to and through appellee's land, and there unites with South Fork about 20 rods east of the northwest corner of appellee's land, and is the natural drainage for the city. In 1911 the city constructed a large main sanitary sewer extending from near the south boundary of the city north through the city and emptying into Prairie creek, about 160 rods south of appellee's land. At the same time lateral sewers were constructed and emptied into the main sewer. A number of other lateral sewers have been constructed and empty into the main sewer. This sewer system has been in continuous use by the city since 1911, and through the lateral sewers is connected with residences, stores, and buildings, both public and private, and carries all the sewage from the city, and is the only available outlet therefor into a natural water course.

Before the construction of the sewer, the water in these creeks was pure and wholesome, and generally used by appellee and other landowners for watering stock and other agricultural purposes. The sewage so emptied into Prairie creek consists of putrescent, poisonous, infectious, and fecal matter, which pollutes the waters of the stream, and gives off noxious and foul odors, which is carried to considerable distance from said streams. At times of high waters, the streams overflow the bottom lands on appellee's farm, and, when the waters recede, large amounts of putrescent sewage gathers in bunches on the farm, and become infected with vermin, and the water of said streams, ever since 1918, has been unfit for watering stock or for any other agricultural purpose; such pollution increasing yearly with the increase of sewage. Such sewage so emptied into and deposited along the streams and on appellee's farm is dangerous to public health, and has made the occupying of the dwelling houses on appellee's land uncomfortable and unsatisfactory, and interferes with appellee's use of his land. Sewage reduction plants are successfully operated in many other cities, so that such sewage is, and can be, rendered pure and harmless. Appellant could at a reasonable cost have erected a sewage reduction plant, so that all of the sewage deposited in said streams could have been rendered pure and harmless. The city negligently failed to take any steps to erect a sewage reduction plant or to reduce the unwholesome and dangerous condition of the sewage. Appellant negligently deposited the sewage in said streams to the injury of appellee. By the use of modern methods the city could have prevented polluting the streams, and could have prevented any injury to appellee's land. The court also found facts relating to the extent of the damage to appellee's land.

Upon these facts the court concluded as a matter of law: (1) That the law was with the plaintiff; and (2) that the plaintiff should recover $3,962.07. Judgment was entered in accordance with the conclusions of law.

Appellant concedes that a private individual has no right to pollute a stream of water to the injury of a lower riparian owner, but contends: (1) That this rule does not, under the decisions of the Supreme and of this court, apply to municipalities, and that a city may lawfully discharge its sewage without reduction or purification into a stream which is the natural outlet, so long as the discharge of such sewage is without negligence; (2) that neither the evidence nor the facts found by the court are sufficient to establish a public nuisance; and (3) that sections 8125 to 8134, Burns' 1926, Acts 1909, p. 60, c. 24, provide a method by which riparian owners along a stream polluted by city sewage may obtain relief, and that appellee, having failed to avail himself of such statutory remedy, cannot maintain this action.

[1] The contention that appellee could have obtained relief under section 8125 et seq. cannot prevail. These sections simply provide a method by which the common council, the board of health of any city, or town, the board of commissioners of any county, the trustee of any township, or 10 per cent. of the electors of any city, town, or village, may file a complaint with the state board of health charging the pollution of the source of any public water supply, or that water of any stream, spring, lake, or pond is being polluted, thereby materially injuring, for domestic use, the character of the water into which the same is discharged, to the injury of public health or comfort. As shown by the title of the act of which the above sections are a part, the statute gives the state board authority to enforce the provisions of the act for the protection of the public health. The statute is not available to an individual landowner like the appellee, who suffers a special injury different from that suffered by the public. The individual landowner must seek relief through the courts, as did appellee in the instant case.

[2] The first and second contentions of appellant will be considered together.

Appellant argues that, since it is by statute, authorized to build and maintain an adequate system of sewers for the disposal of its sewage, it may lawfully discharge its sewage without purification into a stream which is the natural outlet, and that, so long as such discharge is without negligence, it is not liable to a person through whose land the stream flows, though the water of such stream is polluted, and the rental value of such land is diminished thereby.

In support of this contention appellant cites and relies upon City of Valparaiso v. Hagen, 153 Ind. 337, 54 N. E. 1062, 48 L. R. A. 707, 74 Am. St. Rep. 305;Penn., etc., Plate Glass Co. v. Schwinn, 177 Ind. 645, 98 N. E. 715;City of Richmond v. Test, 18 Ind. App. 482, 48 N. E. 610; and Stein v. City of Lafayette, 6 Ind. App. 414, 33 N. E. 912.

In City of Valparaiso v. Hagen, supra, the question before the court for decision was: May a municipality, acting in conformity to the statutes, skillfully and without negligence or malice, pursuing the only natural and reasonably possible line of drainage, be enjoined from discharging its sewage into a natural water course, and thereby polluting its waters to the injury of the lower riparian proprietors?

The court answered this question in the negative, and held the complaint did not state facts sufficient to constitute a cause of action because of a failure “to aver the absence of skill or the want of due care, or that some other outlet could more reasonably be had, or that some other reasonable method of disposing of the city sewage is available.”

It is to be observed that the Hagen Case was an action to perpetually enjoin the city from discharging sewage in a stream which was the natural and only practical outlet for the sewer, and to enjoin the city from depositing the sewage upon the lands of the plaintiff or in the stream at any point. In the language of the court there was in that case no pretense that there was “any other possible outlet or practical means of disposing of sewage, or that the sewer was unskilfully or negligently constructed.”

In City of Richmond v. Test, supra, the court found the sewers were constructed upon the best modern plans for constructing and discharging sewage, and there was nothing to show any negligence in either the construction or the operation thereof by the city. In the language of the court, the city was held not liable for damages, for the reason that there was no showing that the city had “failed to construct the sewers with due care or skill, or that the sewers were negligently operated and maintained.” That case was decided upon the authority of Barnard v. Sherley, 135 Ind. 547, 34 N. E. 600, 35 N. E. 117, 24 L. R. A. 568, 41 Am. St. Rep. 454, where the controlling principle was stated thus:

“Where, therefore, a work is lawful in itself, and cannot be carried on elsewhere than where nature located it, or where public necessity requires it to be, then those liable to receive injury from it have a right only to demand that it shall be conducted with all due care, so as to give as little annoyance as may be reasonably expected; and any injury that may result, notwithstanding such care in the management of the work, must be borne without compensation. It is then a case in which the interest and convenience of the individual must give way to the general good.”

In Stein v. City of Lafayette, supra, Stein sued the city to recover damages for an injury alleged to have been done to his real estate by the wrongful and negligent acts of the city in improving an alley. The complaint alleged that the plaintiff became the owner of the real estate in 1885; that the grade of the alley was established by the city in 1879; that in 1881 the city in improving the alley changed the grade previously established by lowering the surface...