Cnty. Drain Com'r of Oakland Cnty. v. City of Royal Oak

• Decision Date: 30 June 1943
• Docket Number: No. 90.,90.
• Citation: 10 N.W.2d 435,306 Mich. 124
• Parties: COUNTY DRAIN COM'R OF OAKLAND COUNTY v. CITY OF ROYAL OAK et al.
• Court: Michigan Supreme Court

306 Mich. 124

10 N.W.2d 435

COUNTY DRAIN COM'R OF OAKLAND COUNTY

v.CITY OF ROYAL OAK et al.

No. 90.

Supreme Court of Michigan.

June 30, 1943.

Action by Earl L. Clark, County Drain Commissioner of Oakland County, Mich., against City of Royal Oak, City of Ferndale and others for a declaration of rights under 3 Comp.Laws 1929, § 13903 et seq., in connection with the proposed establishment, operation and financing of a sewage disposal system for the so-called Southeastern Oakland County Sewage Disposal District. From a decree determining the several questions presented in accordance with plaintiff's contentions, the defendants City of Royal Oak, City of Pleasant Ridge and City of Huntington Woods appeal.

Affirmed.Appeal from Circuit Court, Oakland County in Chancery; H. Russel Holland, Judge.

Before the Entire Bench.

William C. Hudson, of Royal Oak, for appellant City of Royal Oak.

Arthur E. Moore, of Royal Oak, for appellants City of Huntington Woods and City of Pleasant Ridge.

Harry J. Merritt, Corp. Counsel, of Pontiac, (Claude H. Stevens, of Detroit, of counsel), for appellee Clark.

Orph C. Holmes, City Attorney, of Ferndale, for City of Ferndale.

Stanton G. Dondero, City Atty., of Hazel Park, for City of Hazel Park.

Charles H. Losey, City Atty., of Clawson, for Troy Tp.

Franklin E. Morris, of Ferndale, for Royal Oak Tp.

Morrow & Kull, of Detroit, for Southfield Tp.

Paul E. Krause, Corp. Counsel, and Walter E. Vashak, Asst. Corp. Counsel, both of Detroit, for Appellee City of Detroit.

STARR, Justice.

On December 9, 1942, plaintiff, as county drain commissioner of Oakland county, filed petition under Act No. 36, Pub.Acts 1929, 3 Comp.Laws 1929, § 13903 et seq. (Stat.Ann. § 27.501 et seq.) for a declaration of rights in connection with the proposed establishment, operation, and financing of a sewage disposal system for the so-called ‘Southeastern Oakland County Sewage Disposal District,’ herein referred to as the ‘District.’ The municipal corporations and townships named as defendants (except city of Detroit) are all political subdivisions located in Oakland county. The city of Detroit was made a party defendant because of certain contracts hereinafter referred to. There is no serious dispute as to the material facts involved.

In pursuance of Act No. 342, Pub.Acts 1939, as amended by Act No. 353, Pub.Acts 1941, Comp.Laws Supp.1940 and 1942, § 2486-91 et seq. (Stat.Ann.1942 Cum.Supp. § 5.2767(1) et seq.), the board of supervisors of Oakland county adopted a resolution on April 21, 1942, which, as amended by the board on October 20, 1942, provided in part:

‘Be it resolved, that the board of supervisors of the county of Oakland, Michigan, by a majority vote of its members elect, does hereby authorize and direct that there be established, maintained and operated, under the provisions of Act No. 342, Pub.Acts 1939, as amended, and any other applicable acts, a system of sewer and sewage disposal improvements and services for the purpose of disposing of sewage from the cities of Royal Oak, Ferndale, Pleasant Ridge, Huntington Woods, Berkley, Hazel Park and Clawson; the village of Oak Park; the township of Royal Oak outside the village of Oak Park; sections 1, 12, 13, 24, 25 and 36 of the township of Southfield; and the west 1/2 of section 29, that part of sections 30 and 31 lying outside the city of Birmingham, all of sections 32, 33 and 34 and the west 1/2 of the west 1/2 of section 35 of the township of Troy, all of which territory lies within said county, and is to be known as ‘southeastern Oakland county sewage disposal district.’

‘Be it further resolved, that the county drain commissioner be and he is hereby designated as the agency of the county in connection with the establishment, maintenance and operation of such system of sewer and sewage disposal improvements and services, and as the person who shall have supervision and control of the management and operation of the same.’

The District comprises an area of about 41 square miles and has a population of approximately 100,000. The sanitary and storm sewage from the District is now handled by a system of 10 so-called county drains, established or purported to be established in pursuance of the provisions of the general drain law, Act No. 316, Pub.Acts 1923, as amended, 1 Comp.Laws 1929, § 4838 et seq. and Supp.1942 (Stat.Ann. § 11.1 et seq.). Such county drains are the Royal Oak drain, Campbell road and Red Run improvement drain Lawson drain, East Clawson storm sewer drain, Royal Oak No. 3 storm sewer drain, Royal Oak No. 7 storm sewer drain, Royal Oak No. 9 drain, Southfield No. 2 storm sewer drain, Southfield No. 6 storm sewer drain, and the Hugo Scherer drain. The last seven above-named drains empty into one or the other of the first three. Such three drains, i.e., Royal Oak drain, Campbell road and Red Run improvement drain, and the Lawson drain, converge at or near the intersection of Campbell road and Twelve Mile road in Oakland county, and then empty into the unenclosed or open-ditch section of the Campbell and Red Run improvement drain, which open-ditch section is generally referred to as ‘Red Run’ or ‘Red Run creek.’ The John R. road sewer, constructed by Royal Oak township, also empties into said Red Run creek near its intersection with John R. road. Red Run creek continues beyond the Oakland county line and flows into the Clinton river in Macomb county. Such river empties into Lake St. Clair at a point above the water intakes of Detroit, Highland Park, and certain Grosse Pointe communities.

It appears that in 1925 the city of Royal Oak built a sewage disposal plant which serves only a part of the city and is admitted to be inadequate for its present and future needs. A part of the Royal Oak sewage and all other sewage from the District is untreated. It is admitted that the emptying of the untreated sewage from the District into Red Run creek pollutes such creek and creates an unsanitary condition and health menace. The water in the creek is described as black in color and as giving off an offensive odor. Along the creek banks are deposits of solids from the sewage. There was testimony that such untreated sewage has also polluted the Clinton river and the beaches of Lake St. Clair near the mouth of the river. There was also testimony indicating that the development of certain portions of the District had been retarded, because the Federal Housing Administration had refused to grant loans in any subdivision in the District where it did not already have mortgages, until some method of sewage disposal was provided. Having received repeated complaints, the State stream control commission adopted a resolution in November, 1941, directing that the defendant political subdivisions in the District ‘proceed forthwith to the taking of such steps individually or jointly as may be necessary to abate at the earliest possible date’ the pollution of Red Run creek and Clinton river.

Chapter 17, § 5, of Act No. 316, Pub.Acts 1923, under which the 10 above-mentioned Oakland county drains were established, permitted their use for sewage disposal by any city, village or township in the District. However, Act No. 304, Pub.Acts 1941, Comp.Laws Supp.1942, § 4974 (Stat.Ann.1942 Com.Supp. § 11.138) amended said chap. 17, § 5, to read in part as follows: ‘From and after 3 years from the effective date hereof, it shall be unlawful for any municipality, industry, public or private corporation, individual, partnership association, or any other entity to continue to discharge or permit to be discharged into any county drain or intercounty drain of the state any sewage or waste matter capable of producing in said drain or drains detrimental deposits, objectional odor nuisance, injury to drainage conduits or structures, or such pollution of the waters of the state receiving the flow from said drains as to injure livestock, destroy fish life or be injurious to public health: Provided, That nothing herein contained shall be construed to prevent the conveyance of sewage or other waste through drains or sewers that will not cause the above named injuries.’

The fact that pollution now results from the discharge of sewage into Red Run creek rather indicates that after three years from the effective date of such amendment, the defendant political subdivisions in the District may not be permitted to discharge their untreated sewage into the county drains which empty into such creek. The amendment emphasizes the necessity for prompt establishment of a satisfactory sewage disposal system. There appear to be two possible methods of handling sewage from the District. One method would be to establish a treatment plant on Red Run creek near the intersection of Campbell road and Twelve Mile road. The other method, which has been adopted by Oakland county is described in the contract between the county and defendant political subdivisions thereof, as follows: ‘It appears that the most feasible method of treating said sanitary sewage is to divert the same before it passes into the open ditch portion of the Campbell road and Red Run improvement drain, into a new intercepting sewer to be constructed from at or near the intersection of the Campbell and Twelve Mile roads to the city of Detroit Seven Mile road sewer at the intersection of Andover avenue (with branch along the Twelve Mile road to the John R. road sewer) and from there through the Seven Mile road and Connors creek sewers of the city of Detroit to the backwater gates south of Jefferson avenue, from where it will flow into and through the Jefferson avenue intercepting sewer to the treatment plant of the city of Detroit for treatment and final disposal.’

To carry out such plan for establishing and operating a sewage disposal system for the District, on November 10, 1942, the board of supervisors of Oakland county adopted Ordinance No. Miscellaneous 1987, which provided for the construction of an intercepting sewer extending...