Gundy v. Vill. of Merrill, 103.

• Decision Date: 07 April 1930
• Docket Number: No. 103.,103.
• Citation: 250 Mich. 416,230 N.W. 163
• Parties: GUNDY et ux. v. VILLAGE OF MERRILL et al.
• Court: Michigan Supreme Court

250 Mich. 416

230 N.W. 163

GUNDY et ux.

v.VILLAGE OF MERRILL et al.

No. 103.

Supreme Court of Michigan.

April 7, 1930.

Appeal from Circuit Court, Saginaw County, in Chancery; William H. Martin, Judge.

Suit by Lawrence Gundy and wife against the Village of Merrill and another. Judgment for plaintiffs, and defendants appeal.

Modified.

Argued before the Entire Bench except McDONALD, J.R. L. Crane, of Saginaw, for appellants.

Pierson & McLaughlin, of Saginaw, for appellees.

BUTZEL, J.

Lawrence Gundy and wife, plaintiffs, reside on their farm in the township of Jonesfield, Saginaw county, a little over a mile east of the easterly boundary of defendant village of Merrill. The defendant C. F. Burger Creamery Company owns and operates a milk and creamery plant just outside of the village in the direction of plaintiffs' farm. Plaintiffs claim that one of the outlets of the village sewer runs into a closed tiled drain, that this in turn empties into the open drain or ditch which crosses plaintiffs' farm, and that foul matter and corruption coming from the sewer stagnates in front of plaintiffs' home. They further claim that defendant creamery company deposits waste into the tiled drain, with like effect. Plaintiffs ask that both defendants be enjoined from depositing any sewage or foul matter in the drain. Plaintiffs claim that the gases, vapors, and odors arising from the open drain or ditch are so obnoxious, offensive, and harmful that plaintiffs have been compelled to keep their doors and windows closed; that at times they can neither eat nor sleep; and that it is impossible for them to live in their home without enduring an almost intolerable nuisance. They ask for an injunction and money damages.

Defendants claim that the drain is a county drain, over which the village has no duty nor jurisdiction; that they do not deposit offensive material into the drain, but that it comes from neighboring outhouses, barns, and cattle of the farms; that the present conditions have prevailed for upwards of fifteen years, and that plaintiffs have therefore lost their right to complain; and that plaintiffs have largely contributed to the condition inasmuch as they have permitted the drain to be obstructed by wild flags, weeds, and thick vegetable growth, and a fence so that the water can not pass through the open drain in front of their home. They further claim that, if the drain commissioner would clean out the bottom of the drain, in which undertaking the village would co-operate, there would be no difficulty. Defendant creamery company further maintains that it has ceased to manufacture creamery products, and conducts only a milk depot, and that it no longer deposits any offensive substances in the drain. Both in the...