City of Valparaiso v. Hagen

Decision Date25 October 1899
Docket Number18,638
Citation54 N.E. 1062,153 Ind. 337
PartiesCity of Valparaiso v. Hagen et al
CourtIndiana Supreme Court

From the Porter Circuit Court.

Reversed.

A. D Bartholomew, for appellant.

N. L Agnew and D. E. Kelley, for appellees.

OPINION

Hadley, J.

Valparaiso is a city of 8,000 inhabitants. Salt creek is a natural water course flowing from south to north through the western part of the city; thence west and north to its confluence with the Calumet river. Its fall is fifteen feet per mile, and its minimum volume 227 cubic feet of water per minute. Within the city limits on the southwest is a low-lying marsh that naturally drains into Salt creek. The natural and only practicable drainage for all the territory within the city limits is Salt creek.

Prior to 1896 the city had constructed, according to law, a general and complete system of sewerage for the city at a cost of $ 50,000, and 200 closets and 500 kitchens had been connected therewith; and the outfall from the entire system was into the marsh at the southwest, at a point about sixty-four rods from Salt creek. About 47,000 gallons of sewage are being daily discharged into the marsh. The marsh is heavily overgrown with grass and other vegetation, but sewage in some form finds its way into Salt creek and pollutes its waters. Above the point of sewage contact there are three slaughter houses that drain directly into Salt creek, and one rendering establishment and one gas works drain into near by tributaries. Nine-tenths of one per cent. of the water in Salt creek, below the sewer discharge in time of low water, is sewage coming from the city, the slaughter houses and other polluting agencies above.

Appellant is threatening and has arranged for an extension of the outlet directly through the marsh of Salt creek. The plaintiffs, nineteen in number, are the owners and occupants of lower lands abutting on Salt creek at distances from two to ten miles from and below Valparaiso. The action is for an injunction precluding the city from discharging sewage into Salt creek. The complaint sets forth the several interests of the plaintiffs in the subject-matter: That Salt creek, before the grievances mentioned, was a natural water course and a perpetually running stream of pure water flowing by and through the lands of the plaintiffs, and was used by them for domestic, agricultural, and dairy purposes; that defendant city has 8,000 inhabitants and is situate upon Salt creek at a point higher and up stream from the lands of the plaintiffs; that the city had theretofore constructed and put into use a large and complicated system of sewers and had permitted 500 houses and closets to be connected therewith; that the sewers were so constructed that they emptied all the sewage of the city into the marsh on the southwest, a short distance from Salt creek, and that the sewage, being discharged in great quantities into the marsh, overflowed and ran into Salt creek, whereby the waters of the creek became polluted, filthy, and unwholesome, and the banks of the creek became lined and overflowed with sewage, slops, excremental filth, and garbage, and the lands of the plaintiffs contiguous thereto, and which were used for pasture, have been and are being overflowed by said substances, and the grass so befouled that the plaintiffs' stock will not eat it nor drink the water in the stream; that noxious odors arise from the stream and permeate the air for a half mile and injuriously affect the health and happiness of the plaintiffs and their families; that the city is threatening to and will accomplish an extension of the sewer through the marsh to Salt creek and there and thereby empty all the sewage of the city directly into Salt creek above the plaintiffs' lands, and there and thereby greatly increase the pollution of the water and render it unfit for any purpose, to the irreparable damage of the plaintiffs. Prayer, "that the city be enjoined forever from constructing said sewer outlet, or emptying the sewage of the city in the said stream or upon the said land at the place where it is now emptying, and from depositing the same into said creek at any point."

A demurrer to the complaint was overruled, and sustained to the second paragraph of answer. A trial was had upon the general issue, and finding and judgment perpetually enjoining the appellant from polluting or increasing the pollution of the waters of the creek by permitting its sewage to run into the waters of the stream.

Error is assigned upon the action of the court upon the demurrers, and upon the overruling of appellant's motion to modify the finding and for a new trial. But, as suggested by the appellant, each assignment raises but a single, and the same, question, and they will therefore be considered together. That question is: May a municipality, acting in conformity to the statutes, skilfully 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?

It is a familiar principle that injunctive relief will not be granted if there exists a complete remedy at law, and, if the case falls within the class of damnum absque injuria, the denial is equally imperative. It is equally well established that every owner of land, through which a stream of water flows, is entitled to the reasonable use and enjoyment of the stream. His right to do so is not an acquired property right, but a natural right appurtenant to his freehold, and is in common and equal with all others owning land upon the stream. He may dam it and divert it for mechanical purposes and fish ponds if he will return it to its channel before leaving his premises; he may use it for purposes of agriculture; his animals may take water from it at will; he may clear away the forests, plant crops, fertilize his field, feed his animals in lots, and permit the storm water from his fields and feed yards to flow by natural ways into the stream; or he may collect the surface water upon his premises, if all upon the water shed into ditches, covered or uncovered, and clean or unclean, may direct them into the stream, even though such drainage corrupts the waters of the stream and sends them on to the owners of the servient estates less pure than he received them. His enjoyment is according to his position, superior to those below him and inferior to those above him.

The right to improve and beautify property and to employ all the reasonable methods afforded by the estate and its appurtenances, to protect the health and promote the comfort and happiness of self and family, is inseparably...

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1 cases
  • Parker v. Mayor And City Council of Monroe
    • United States
    • Louisiana Supreme Court
    • April 24, 1911
    ... ... 75; Wilson v. Mayor of New ... York et al., 1 Denio (N. Y.) 595, 43 Am. Dec. 719-723, ... and notes; 22 Cyc. 879, 882, 884, 892; Valparaiso v ... Hagen, 153 Ind. 337, 54 N.E. 1062, 48 L. R. A. 707, 74 ... Am. St. Rep. 305 ... [128 ... La. 958] In the case of New Orleans & ... ...

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