Commonwealth Ex Rel. Atty. Gen v. City Of Newport News

Decision Date16 June 1932
Citation164 S.E. 689
CourtVirginia Supreme Court
PartiesCOMMONWEALTH ex rel. ATTY. GEN. v. CITY OF NEWPORT NEWS et al.

Appeal from Circuit Court of City of Richmond.

Suit by the Commonwealth, at the relation of the Attorney General, against the City of Newport News and others. Decree of dismissal, and the Commonwealth appeals.

Affirmed.

Argued before CAMPBELL, C. J., and HOLT, EPES, GREGORY, and BROWNING, JJ.

Edwin H. Gibson, of Richmond, and Allan D. Jones, of Newport News, for appellant,

R. M. Lett, of Newport News, and J. R. Tucker, of Richmond, for appellees.

EPES, J.

This is a bill brought by the commonwealth of Virginia, at the relation of the Attorney General, acting under the authority and direction of the Governor, against the city of Newport News and the members of its city council. The primary purpose of the bill is to restrain the city from dumping untreated sewage into Hampton Roads, and thereby polluting the oyster bottoms in the Roads and its estuaries. The defendants demurred to the bill. The court sustained the demurrer and dismissed the bill; and the cause is here on an appeal from that decree.

The bill alleges that the city is now discharging untreated sewage into the Roads through several channels, and proposes to construct other sewer systems which will discharge untreated sewage into the Roads at new points and cause pollution of areas notnow polluted. But as all questions raised by any of the allegations of the bill are raised by those relating to the present sewer which discharges into Salters creek and the new pipe line which the city proposed to construct to carry this sewage further out into Hampton Roads, we shall recite only those which relate thereto. These allegations are as follows:

Newport News is situated on a point, the western side of which is washed by the waters of the James river and the eastern side by the waters of Hampton Roads. Some 3,-000 yards northeast of the tip of the point Salters creek flows into the Roads, at the mouth of which and all along the northeast side of the point are tidal flats.

The main sewer of the city discharges into Salters creek some 800 yards from its mouth, and the sewage is carried thence by the tides and currents into Hampton Roads and up into James river. The sewage is discharged into these waters in its raw untreated state.

Large areas of the bottoms of Hampton Roads and the lower reaches of the James river are suitable for planting and propagating oysters and other shellfish, and some of the bottoms come within the definition of "natural oyster beds, rocks and shoals." Much of the oyster planting ground is now, and has been for a long time, leased by the commonwealth to private persons, from which leases it derives a considerable annual revenue. Food fish are also found and may be taken in commercial quantities in these waters.

The raw sewage discharged by Newport News into Hampton Roads has seriously polluted all the waters of Hampton Roads and James river in the vicinity of the city. The polluted area now extends up James river for more than four miles above the city, and below the city it extends fifteen miles, or more, to Old Point Comfort. In the James it extends for a mile or more off shore. As you go down the Roads it broadens out, until opposite Hampton and Old Point Comfort it extends entirely across the Roads and up into some of its estuaries on the south side of the Roads. However, it is not alleged to what extent the pollution of the lower reaches of this area is caused by the sewage from Newport News, rather than by the sewage from Hampton, Phœbus, Old Point Comfort, and other settlements on the north side of the Roads, and by the sewage from Ocean View, the naval base, and the other extensive settlements below Craney Island on the south side of the Roads.

So great is the pollution caused by this sewage that the health authorities of Virginia and of the United States have declared the waters of the polluted area unfit for the propagation and taking of shellfish; and the value of these waters for purposes of fishing of all kinds has been practically destroyed. This has resulted in a diminution of the activity of tongers and planters of oysters and other shellfish, and the consequent loss of a large revenue to the state. It has also rendered these waters unfit for bathing purposes; and the health authorities of the various places along the shore line affected by the pollution have forbidden bathing therein. Many cases of infectious diseases are directly traceable to eating shellfish taken from these waters; and as a result of this pollution these tidal waters and the flats along the shore give off at ebb tide offensive and unhealthy odors which are injurious to the comfort and health of the people in the vicinity thereof.

By discharging this raw untreated sewage into these waters, the city has created and is maintaining a general public nuisance.

The city is now about to construct a large sewer pipe extending from a point near the present outlet of the Salters creek sewer to a point in Hampton Roads approximately 2, 000 feet beyond low-water mark, where the water is about 13 feet deep, into which it proposes to divert the raw untreated sewage now being discharged into Salters creek.

Sewage discharged into the Roads through the proposed pipe line will be carried by the tides and currents over a much larger area than that which is now polluted, and will pollute many more acres of natural rocks, planting grounds, and fishing waters; and will substantially impair and eventually destroy the right of fishery in these waters.

The plans for the construction of the new sewer call for the dredging of a trench in the bottom of Hampton Roads 30 feet wide at the top and 10 feet wide at the bottom, and the replacement of the dredged material after the pipe has been laid. This will constitute a trespass upon the lands held by the commonwealth in trust for all its people thereof; and the effect of thus disturbing the bottom will be to cause sand and silt to be spread over a large area of bottoms now leased by the commonwealth to private persons for the propagation of oysters, and destroy the oysters growing thereon.

The bill further alleges that the cities, towns, and communities situated on Hampton Roads, as well as the commonwealth, have a peculiar interest in seeing that the waters thereof are kept free from pollution; and in this connection states:

"This territory has been, and is being advertised as the playground of the State of Virginia; the State has made appropriations and constituted official bodies to foster the growth and development of the port of Hampton Roads; and the State Conservation and Development Commission has concerned itself in the establishment of parks in the vicinity of Hampton Roads. At Newport News, Fortress Monroe and Buckroe Beach, as well as at Ocean View and Willoughby Beach, large hotels catering to the traveling public, particularly summer visitors, advertise among other attractions bathing, boating and fishing. * * * Large sums of money are invested in the fish and oyster industry, and property values on the water front aforesaid * * * are greatly impaired by reason of the pollution of the tidal waters aforesaid. * * *"

The bill then charges: "* * * Great progress has been made in civic sanitation, and due regard for the health of its citizens had led many municipalities to provide sewage disposal plants * * * for processing and treating raw sewage, so that * * * the effluent is rendered innocuous and odorless; * * * such plant or system may be provided by the city of Newport News at a moderate cost * * * (and) it has become and is the duty of the said city to construct and maintain such disposal plants or systems, having regard to the health, not only of its citizens, but the public in general."

The bill prays: (1) That the construction, maintenance, and operation of the proposed sewer line be enjoined; (2) that the city be required to abate the nuisance it is now maintaining by dumping its sewage into Salters creek; and (3) that, if the court deem it inexpedient at this time to grant such injunctions, it will enter a declaratory decree adjudging that the city is not entitled to continue to dump untreated sewage into Hampton Roads and James river, and that, unless the city shall within a reasonable time install the necessary plants and chemically treat its sewage so as to render it innocuous, the commonwealth will be entitled to the injunctions prayed.

The allegations with reference to offensive, obnoxious, and unhealthy odors being given off from the polluted waters and the flats thereof at ebb tide are "and also" allegations, thrown in as a "make weight" for the real burden of this complaint. They are apparently so treated by the appellant in its petition and argument, and we shall dismiss them without further consideration other than in this capacity.

There may be cases in which the dumping by a municipality of untreated sewage in large volume into a tidal water at a particular place or in a particular manner may create a menace to the health of the community and therefore be a public nuisance which the courts will enjoin. But the allegations here made in relation to this point are not sufficient to constitute an independent ground for injunctive relief. In addition to this, the allegations of the bill read in conjunction with the exhibits filed therewith warrant the inference, if they do not plainly show, that, if at present the health of the community is being en dangered by this sewage, the proposed change will go far towards remedying this trouble, if it does not entirely relieve it. It would therefore be premature at this time to grant an injunction on this as an independent ground for relief.

The right of the public to bathe in and use the waters of the Roads and its estuaries for other pleasure purposes is even more clearly an incident of the state's jus privatum than the common...

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