Love v. Nashville Agr. and Normal Institute

• Decision Date: 31 July 1922
• Parties: LOVE v. NASHVILLE AGRICULTURAL AND NORMAL INSTITUTE ET AL.
• Court: Tennessee Supreme Court

243 S.W. 304

146 Tenn. 550

LOVE v. NASHVILLE AGRICULTURAL AND NORMAL INSTITUTE ET AL.

Supreme Court of Tennessee.

July 31, 1922

Certiorari to Court of Civil Appeals.

Bill for injunction by William I. Love against the Nashville Agricultural and Normal Institute, a corporation, and others. From decree of the Court of Civil Appeals, affirming decree for plaintiff, defendants bring certiorari. Modified and affirmed.

John B Daniel, of Nashville, for plaintiff.

W. P Cooper and E. J. Smith, both of Nashville, for defendants.

SMITH Special Justice.

The purpose of the original bill in this case was to enjoin the defendants from maintaining a nuisance in the operation of its school and sanitarium by means of conducting sewage from its said plant in such a way as to contaminate the water in a well or spring of complainant located upon his premises adjoining those of the defendant, and to recover damages occasioned thereby previous to the filing of the bill; it being alleged that the water has a commercial value possessing medicinal qualities.

The answer of the defendants put in issue the averments of fact upon which the relief was sought, and set up other defenses, some of which are not relied upon in this court. Other defenses in the answer urged here are that, even though the drainage of this sewage might contaminate complainant's water, defendant institute was not liable in damages, because it was a religious, charitable, and educational corporation, whose property and funds were being used in a trust capacity, and therefore were not liable for damages resulting from negligence, and that the other defendants, the trustees and managers of the institution, were not liable, because they were not guilty of any misfeasance in the operation thereof.

On the hearing of the cause before the chancellor he was of the opinion that the preponderance of the proof showed that the sewage from this institution entered from the drain where it was deposited an underground channel, and by that means reached the complainant's well and contaminated his water, and that this situation constituted a nuisance which the complainant was entitled to have abated and permanently enjoined. The chancellor also decreed that the complainant had been damaged, "both in the character of his spring, the reputation of his spring as a pure and medicinal water, and also in the value of his property and in the proceeds of his spring, which he was engaged in putting upon the market at the time that this contamination became a fact." The chancellor did not decree to what extent the damage to complainant was the result of pollution of the water, nor did he undertake to fix the amount of damages sustained, but referred the case to the master to hear proof and report. From this decree an appeal was allowed and taken to the Court of Civil Appeals.

The Court of Civil Appeals concurred with the Chancellor, both in his conclusions as to the facts and upon the questions of law presented, and the decree was in all things affirmed by that court. Thereupon the complainant filed a petition in this court for certiorari in order to have a review and reversal of the decree of that court. The writ has been allowed, and the case is before us for final determination upon the errors assigned by the defendants to the decree of the Court of Civil Appeals.

While it is conceded by the defendants that as the case now stands it has been established as a fact that this sewage of the defendants reaches the complainant's spring in some unknown manner, and that this court is bound by the concurrent findings of fact of the chancellor and Court of Civil Appeals, the action of the Court of Civil Appeals is assigned as error, because the proof on which the finding is based is incredible, impossible, and unreasonable.

It is conceded that the sewage from the defendants' institution is conducted from the immediate premises by means of pipes to a natural drainage which leads into the Cumberland river. There is evidence to the effect that this drain runs along by the side of a bluff, and that below the point where it is emptied from the pipes into the drain there is a hole of considerable size in the rock, into which during dry weather, there being little or no water flowing in the drain, the sewage enters, and at the time of the filing of the bill the defendants were emptying something like 5,000 gallons of sewage into this drain. This opening into the bluff is something like 32 feet above the bottom of the complainant's well, and between 22 and 32 feet above the point where the stream which supplies the complainant's well enters the well. This opening in the drain is shown to run in the direction of the complainant's well, and it is also shown that in the well there is an opening which comes from the direction of the defendants' property. Some time in the year 1919 the complainant, being desirous of having an analysis made of his water for the purpose of determining its mineral qualities, submitted samples from the well to Dr. W. H. Hollinshead, an expert chemist in charge of chemistry at Ward Bellmont and for many years connected with Vanderbilt University as professor of Chemistry, and a graduate of Vanderbilt in the pharmaceutical and academic departments, and who had had over 30 years' experience in all branches of analytical chemistry, during which time he had analyzed the source of many water supplies. In making this analysis the chemist discovered that the water was contaminated, being polluted by sewage from some source. The complainant, being advised of the result of this analysis by the chemist, set about to ascertain the source of the contamination. He discovered that the sewage from the defendants' institution was being delivered by pipes into this drain. This sewage of course gave off offensive odors, containing as it did the offal naturally accumulating from an institution of this character. The sewage emptied into a hole in the rocks at a level considerably above that of his spring. In order to determine whether this sewage by any means entered into his well by means of an underground channel, numerous tests were made, not only by the complainant himself, but by this chemist and under his directions. One test made by the complainant was by pouring a large quantity of water colored with indigo into the opening in the drain, and subsequently finding blue water in his well. A practical test used by the chemist to trace the course of the water was by using potassium iodide. That is used because the iodide is easily detected. Before using the iodide test, in view of the fact that he had found iodine in the water in small amounts when analyzing it for the mineral qualities, he made an analysis of the water from the spring for the purpose of ascertaining whether at that time it contained any iodine, and, after making a thorough test and finding that it contained none whatever, he placed into the sewage from the defendants' institution some three pints of potassium iodide, and thereafter took samples from the water of the spring over a period of six hours. The first three samples showed no trace of iodine, but later samples showed its presence. Collections of samples were continued until the iodine disappeared. From this test the chemist concluded that the opening in the drain connected directly with the complainant's spring. In order to make assurance doubly sure the chemist thereafter used aniline and put it into the opening, and a subsequent thorough test developed the presence of the aniline in the complainant's spring. Another evidence was the fact that the solution found by the chemical analysis was of that character of material found in the source, and so far as known there was no other source for material of this character to enter the spring.

There is certainly no basis for the charge that this testimony is unreasonable or improbable, when taken alone. Its unreasonableness and the improbability or impossibility of its being true is based upon evidence whch the defendants introduced. It is shown that the drain into which this sewage is deposited empties into the Cumberland river at a point below the complainant's spring, and between the complainant's spring and the drain are high ridges, which indicates that the drain of the surface water at least is in the direction from the complainant's property to that of the defendants. But this is no obstacle to the conclusion reached by the chancellor and the Court of Civil Appeals since it is a well-known fact that there are underground channels, and the improbability is dispelled when it is remembered that there is in fact an opening in this drain at a level considerably above that of the spring. Again, it is said that Dr. Litterer made several tests of this water in 1918 without discovering any contamination or pollution whatever. This evidence, while a circumstance, is not conclusive, for the reason that at the time these tests were made there may have been no connection between the sewage system of the defendants and the complainant's spring. Another fact relied upon by defendants as establishing the unreasonableness of the plaintiff's proof on this point is that the United States government, through one of its sanitary officials, undertook a test which, had there been any connection between the defendants' sewage and the complainant's spring, would have developed the fact. There is evidence to show that the government official conducted his experiments in such a way as would not determine the fact; that is to say, he made his examination below the point of the opening in the bluff, and by the use of a comparatively small amount of coloring matter, and at a time when there was high water and backwater that would interfere with his test. ...