Larsen v. Village of Lava Hot Springs

• Decision Date: 30 October 1964
• Docket Number: No. 9499,9499
• Citation: 396 P.2d 471,88 Idaho 64
• Parties: H. C. LARSEN, Jr., Plaintiff-Respondent, v. VILLAGE OF LAVA HOT SPRINGS, Idaho, Defendant-Appellant.
• Court: Idaho Supreme Court

Page 471

396 P.2d 471

88 Idaho 64

H. C. LARSEN, Jr., Plaintiff-Respondent, v. VILLAGE OF LAVA HOT SPRINGS, Idaho, Defendant-Appellant.

No. 9499.

Supreme Court of Idaho.

Oct. 30, 1964.

Rehearing Denied Nov. 23, 1964.

Merrill & Merrill, Pocatello, for appellant.

Allan G. Shepard, Atty. Gen., and Michael Southcombe, Asst. Atty. Gen., amici curiae.

F. M. Bistline, Pocatello, for respondent.

SMITH, Justice.

Defendant-appellant Village of Lova Hot Springs, a municipal corporation, is herein sometimes referred to as the Village.

Respondent seeks to enjoin the Village from constructing a lagoon type sewage stabilization plant in the near vicinity of respondent's real property which borders the Portneuf River to the south, about one mile west of the Village. This appeal resulted from a judgment and decree enjoining the Village from constructing the lagoon.

Respondent in his complaint alleges that the Village, unless enjoined, will construct the proposed open type of sewage disposal plant, upon a tract of land situate immediately adjacent to respondent's real property. He then alleges that he has erected upon his real property a 10-unit motel, costing some $65,000; that the land upon which the Village intends to construct the plant is subject to flooding from high waters of the Portneuf River; that the plant if constructed will create a health hazard to respondent, and particularly to occupants of the motel, beyond respondent's control, cause offensive odors and attract flies, mosquitos and other insects, and will cause prospective motel guests to forego staying there; also that it will cause a sharp drop in the market value of respondent's property, making it impossible for respondent to develop it further as a business area; that at the present time there is situate in the area, in addition to respondent's motel, a service station and two restaurants.

Respondent, by his prayer, seeks to enjoin the Village permanently from constructing the sewage disposal plant in such area.

The Village by its answer admitted that it intends to construct such an alleged lagoon type sewage disposal plant. The Village then alleged that the plan and type of plant which it intends to construct was approved by the State Board of Health and a public health engineer, and would be built under the supervision of a licensed engineer for the purpose of handling domestic sewage from the Village; that the lagoon would be located across the Portneuf River (southwesterly) some 300 feet distant from any of respondent's buildings.

The Village denied that the intended sewage disposal plant would create a health hazard, and particularly to the occupants of respondent's motel. The Village further alleged that it intends to construct the plant in compliance with the request of the State Board of Health in order to prevent polution of the waters of the Portneuf River and to protect the health of the inhabitants of the Village.

Issues having been joined, the trial court, at the conclusion of a trial without a jury, entered its findings of fact and conclusions of law, and a decree restraining the Village 'from building an open sewage lagoon type disposal plant to serve the Village of Lava Hot Springs within 600 feet of the plaintiff's property line, used for picnic purposes.' Appellant perfected an appeal from such decree. A brief statement of the facts follows.

Respondent purchased a tract of land in 1959 located on the Portneuf River one mile west of Lava Hot Springs. In 1960 he constructed a ten-unit motel and facilities to provide service to nine trailer houses; additionally, he provided picnic and camp ground facilities between the trailer installation and the river.

The Village discharges its raw sewage into the Portneuf River; because of resultant contamination of the river, Idaho's State Board of Health requested the Village to discontinue such practice and construct a sewage disposal system. After considering such request, the Village determined that the lagoon type sewage disposal plant would be the most feasible and economical structure for its purpose. Studies by the State Board of Health have determined that a lagoon area of approximately one acre is required for sewage disposal purposes to serve a population of 200 people.

The Village at its last census in 1960 had a population of 593. The Village contemplates an active lagoon type sewage disposal plant of approximately six acres, sufficient to accommodate a population growth of the Village to twice its present number. The Village contemplates a second lagoon of approximately two acres in area to be constructed beside the larger lagoon. The small lagoon would be activated and used only in the event the larger unit becomes insufficient to accommodate subsequent population growth.

Under the contemplated plan of disposal the sewage would be piped to the mid-area of the large lagoon containing three to four feet of water. The solids would be dispersed over the entire bottom area of the lagoon by wave movements of the water caused by the winds, with consequent high degree of dilution. Bacteria contained in the sewage, as well as in the soil, would feed upon and decompose the complex substances comprising the sewage, resulting in carbon dioxide, ammonia and other breakdown substances of organic material, including amino compounds. Decomposition would take place under aerobic conditions (presence of oxygen) through atmospheric aeriation and re-aeriation of the eater due to wind action with resultant absorption of oxygen by the water; consequently no odors would be produced. The resulting water with high content of phosphorus, nitrogen, and carbon dioxide would be favorable to the growth of algae for consumption of the carbon dioxide and the amino compounds, and to the giving off of oxygen, thereby to maintain the water in a highly saturated condition as to its oxygen content, particularly during the spring, summer and fall months. Sunlight would also help to maintain the high level of oxygen in the eater.

The United States Government has made funds available to small villages and communities for the purpose of aiding them in the construction of sewage disposal plants in order to eliminate pollution of streams. As a result of negotiations, the Government through the United States Department of Health, Education and Welfare, agreed to contribute $30,000 toward payment of the construction costs of the contemplated disposal plant. The Village then authorized the issuance and sale of $60,000 of its bonds, the proceeds to be used to pay the balance of the cost of the plant. Sale of the bonds has been deferred pending the outcome of the present action.

Plans were drawn and submitted to both the Health Departments of the State of Idaho and the United States; both approved the plans.

The lagoons, if constructed at the place intended, will be directly across the Portneuf River southwesterly from respondent's property. The smaller lagoon, which would not be used except if necessary, would be located approximately 300 feet from respondent's motel, and the larger, 650 feet from the motel. The Portneuf River is about 60 feet wide as it flows by respondent's property. The location of the picnic ground extending southerly from the trailer area to the river is not more definitely shown than between 75 and 200 feet distant from the smaller proposed lagoon. The distance from the larger active lagoon to the trailer park would be less than 300 feet.

Appellant by its various assignments contends that the trial court erred in finding that the intended construction of the lagoon type sewage disposal plant would constitute a health hazard to respondent and particularly to occupants of his motel property, the trailer park and users of the picnic grounds; cause offensive odors and the possibility of the presence of germ carrying insects; also in finding that the minimum safe distance of such a lagoon from respondent's property is 600 feet; and in finding that such contemplated structure would cause respondent irreparable damage; also in entering its conclusions of law and decree.

The assignments of error raise the issue of insufficiency of the evidence to support the findings of the trial court. It therefore of necessary to review the evidence and to determine whether the trial court correctly applied the law.

A brief history of the lagoon type sewage disposal plants as shown by the record is deemed advisable. The first plant of this type was constructed in 1948 in North Dakota, and since that time communities in 39 states have used this method of sewage disposal. At the time of the trial of the case at bar there were 2o lagoon sewage disposal plants in the State of Idaho operated under the supervision of the State Board of Health. From December, 1956, to ...