Gould v. City of Rochester

• Decision Date: 08 March 1887
• Parties: GOULD and others, as Board of Health, etc., v. CITY OF ROCHESTER.
• Court: New York Court of Appeals Court of Appeals

105 N.Y. 46

12 N.E. 275

GOULD and others, as Board of Health, etc.,

v.CITY OF ROCHESTER.¹

Court of Appeals of New York.

March 8, 1887.

Appeal from general term supreme court, Fifth judicial department.

Suit to enjoin nuisance.

Walter S. Hubbell, for appellants.

Ivan Powers, for respondent.

ANDREWS, J.

The city of Rochester adjoins on the east the town of Brighton. It constructed sewers which discharged into ditches near the boundary between the city and town, which carried the sewage upon and over lands in Brighton, and ultimately into Thomas creek, a small stream running through the town, and having its outlet at Irondequoit bay. The ditches were constructed by the city under a general legislative authority to acquire land outside of the city limits, and open ditches thereon to carry off the drainage of the city. It is found that the discharge of the sewage through the ditches and into Thomas creek created a nuisance in the town of Brighton dangerous to the public health. On the first day of August, 1884, the plaintiffs, constituting the board of health of the town, enacted a rule or regulation prohibiting any person or corporation discharging, or causing to be discharged, upon any of the lands, or into any of the streams, of the town of Brighton, the contents of any sewer in which is drained the contents of any privy, watercloset, or urinal, under a penalty. On the same day the board passed a resolution declaring that the discharge of the sewage of the city of Rochester from the Monroe-avenue sewer and the East-avenue sewer upon lands in the town of Brighton, and from thence into Thomas creek, was a nuisance, the suppression and removal of which was necessary for the preservation of the public health, and ordering that the nuisance be suppressed, and imposing a penalty for the violation of the regulation, and also authorizing the prosecution of any person or corporation violating the same, or the commencement of an action to restrain such violation, or otherwise to enforce the regulation. By direction of the board a copy of the regulation was posted in the town, and served upon the city of Rochester, by their delivering it to the proper authorities of the city.

It is sufficient to state, without entering into details, that the discharge of the filth from the sewers into the open ditches, and from them into Thomas creek, created an offensive and dangerous nuisance in the town. The sole question here presented is whether the board of health of the town of Brighton is authorized to maintain an action against the city to enforce its regulation, and to restrain the continuance of the nuisance. It is clear that there is a remedy by indictment, and also by civil action at the suit of persons sustaining special injury by the unlawful acts of the defendants. The right of the board of health of the town of Brighton to maintain the action is challenged, on the ground that it has no general capacity to sue, but only such as is specially conferred by the law under which boards of health are organized, and that the circumstances of this case do not bring it within the authority conferred. It would seem that an action by the body representing all the inhabitants of the town, invoking the equitable power of the court to restrain the continuance of a wrong so vitally affecting the interests both of individuals and of the public at large, wuld be most appropriate. But it is undoubtedly true that the power to maintain the action, if it exists, must be found in the statute, and it is therefore necessary to ascertain what statutory powers are conferred upon boards of health, and whether they include an authority to maintain an action under the circumstances existing in this case.

The original statute (chapter 324, Laws 1850) ‘for the preservation of the public health,’ and providing for the organization of health boards in cities, villages, and towns, conferred upon such boards, among other things, the power to make and publish rules and regulations for the ‘suppression and removal of nuisances,’ (section 3, subds. 3, 6,) and prescribed a penalty for the willful violation of any regulation ‘so made and published,’ (section 4.) But the act conferred no power upon boards of health to maintain any action to enforce their regulations, and it was held that actions could not be maintained by the board. People v. Supervisors Monroe Co., 18 Barb. 567. The powers of boards of health were, however, subsequently enlarged by amendment to the original act, and the powers of boards of health, as they now exist, are declared in the supplementary act. Chapter 351, Laws 1882. By the third section they are empowered ‘to make orders and regulations, in their discretion, among other things, for the suppression and removal of nuisances, and all such other orders and regulations as they shall think necessary and proper for the preservation of public health,’ and to enter upon any place or premises where conditions dangerous to the public health are known or believed to exist, for the purpose of inspection, and also ‘to receive and examine into the nature of complaints made by any of the inhabitants concerning causes of danger or injury to the public health within the limits of its jurisdiction.’ Subdivision 6 of the same section confers the power and makes it the duty of boards of health ‘to publish, from time to time, all such orders and regulations of general obligation as they shall have made, in such man ner as to secure early and full publicity thereto, and to make, without pub lication thereof, such orders and regulations in special and individual cases not of general application, as they may see fit, concerning the suppression and removal of nuisances, and concerning all other matter in their judgment detrimental to the public health, and to...