New Odorless Sewerage Co. v. Wisdom

• Decision Date: 25 October 1902
• Citation: 70 S.W. 354
• Parties: NEW ODORLESS SEWERAGE CO. v. WISDOM et al.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

70 S.W. 354

NEW ODORLESS SEWERAGE CO. v. WISDOM et al.^*

Court of Civil Appeals of Texas.

October 25, 1902.

Appeal from district court, Cooke county; D. E. Barrett, Judge.

Action by Octavia Wisdom and others against the New Odorless Sewerage Company. From a judgment for plaintiffs, defendant appeals. Affirmed.

Edward P. Hill and Robert E. Cofer, for appellant. Davis & Garnett and Culp & Giddings, for appellees.

HUNTER, J.

This was an action for damages brought by appellees against appellant for polluting the waters of Elm creek, which flows through appellees' land. Appellees own a farm of 66 acres, on which they reside, situated on Elm creek, below the city of Gainesville, Tex. Appellant is a corporation engaged in operating a system of sewerage in said city. It owns a sewerage farm on the banks of Elm creek, of about 30 acres, about three-quarters of a mile above appellees' premises. It also owns a system of pipes laid in the principal streets of Gainesville, and these pipes connect with public and private houses, and receive all the sewerage matter from said houses, and through these pipes the sewerage matter of a large portion of said city is conducted to a large receptacle built on the said sewerage farm. Appellees allege in their petition that the said sewerage matter is dumped by appellant into Elm creek, and through said creek said sewerage matter reaches their premises; that the waters of said creek have been contaminated, and a permanent injury done to their said farm; and they sue for damages for such permanent injury. The petition does not charge appellant with negligence, nor improper construction of its sewerage plant and works, nor with draining any territory not naturally draining into Elm creek, but treats appellees' rights as depending purely and simply upon the alleged pollution of the waters of Elm creek. Appellant answers by general and special demurrers, by general denial, plea of not guilty, and by special answer. The special answer sets up that appellant has a franchise from the city of Gainesville; that its system of sewerage was built under said franchise at great expense; that appellant used all reasonable care in the construction of its works, which are constructed according to the best known plan, and that appellant is guilty of no negligence; that the sewerage farm is so constructed and arranged that it controls the sewerage matter in appellant's pipes, and none of such matter falls into Elm creek; that Elm creek is the only natural drainage way for Gainesville, and no territory not naturally tributary to Elm creek drains into appellant's sewers. A judgment was rendered on the verdict of the jury for $750, and on appeal we are asked to revise that judgment.

The record discloses the following facts, in substance: The appellee Octavia Wisdom was the owner of a 66-acre farm through a portion of which Elm creek flowed. The land was worth from $60 to $70 per acre before the sewers were built. The appellant was incorporated under the laws of Texas in 1898, and had a franchise from and contract with the city of Gainesville, which has a population of some 12,000 people, to drain the city of its sewage for 50 years from 1898. It does so by means of salt vitrified pipes, cemented together, under the streets and alleys of the city, connected with the houses, and through which the sewage is conveyed to a 30-acre tract of land owned by appellant on the bank of Elm creek, about three-fourths of a mile above appellees' farm and home, and about a mile and a half below the city of Gainesville, and there deposited in a receptacle dug in the earth, 100 feet long, 12 feet wide, and 12 feet deep, covered over with heavy timbers and earth. From this receptacle a system of loose-jointed, perforated pipes extends into the field, about 3 feet from the surface, and conveys the overflow water from the cesspool out into the earth, where it is supposed to be filtered, and thence carried to the creek through another system of perforated pipes. The solid matter from the sewers remains in the large receptacle, where, as the evidence tends to show, it is consumed by certain bacteria,...