Pearce v. Gibson County

• Decision Date: 08 June 1901
• Citation: 64 S.W. 33,107 Tenn. 224
• Parties: PEARCE et al. v. GIBSON COUNTY et al.
• Court: Tennessee Supreme Court

64 S.W. 33

107 Tenn. 224

PEARCE et al. v. GIBSON COUNTY et al.

Supreme Court of Tennessee.

June 8, 1901

Appeal from chancery court, Gibson county; John S. Cooper Chancellor.

Injunction by John K. Pearce and others against Gibson county and others to restrain defendants from connecting water-closets and urinals in the court house with certain sewer pipes. From a decree for complainants, defendants appeal. Modified.

Taylor & Biggs, for appellants.

Walker & Hunt, for appellees.

McALISTER J.

At the date of the filing of the bill herein, and prior thereto Gibson county had in course of construction a court-house building in the town of Trenton, Tenn., in which building provision had been made for six water-closets and urinals, to be connected with the sewer pipe which the building commissioners of said new court house were proceeding to lay down. The avowed intention of the committee in putting in the sewer was to attach the court-house closets to it, and incidentally they had arranged to connect the closets of the county jail and those of the E. F. Watson Machine Shops to this sewer. The pipe for this sewer was ready for being put in, and part of it laid, when complainants filed their bill in this cause. The ditch in question is not a running stream and only flows in times of rains and high waters. The sewage from the new court-house building and from said water-closets and urinals was intended to be conveyed through said sewer pipe and dry ditch and emptied upon the lands of complainants. It further appears that complainants are butchers and vendors of fresh meats, conducting a large business, and using said lands for pasturing their cattle, sheep, hogs, and goats kept by them for butchering purposes. Their slaughter pens and houses were also situated on said lands. On the 24th of November, 1899, complainants filed this bill to enjoin the building commissioners of the county from connecting the water-closets and urinals of the new court house with said sewer pipes, alleging that, if the sewage from the said court house be conveyed through said sewer, and emptied at said point, it will create a public nuisance, and especially a nuisance to complainants, doing them irreparable injury; that the filth would be washed down through the open ditch upon complainants' lands, injuring their business, destroying their health, and diseasing their cattle. A temporary injunction issued upon the fiat of the chancellor. Answers were filed, and proof was taken. On the hearing the chancellor decreed that the injunction theretofore issued enjoining the defendant Gibson county, its agents and officers, from in any way connecting the water-closets of the court house with the sewer pipe, and from emptying the sewage from the court house by means of same to said open ditch, and there emptying same be made perpetual. The injunction was so far modified as to permit the work to be completed for the purpose of draining the basement of the court house.

Defendants appealed, and the first error assigned is that the suit was prematurely brought, and should have been dismissed. The insistence is that no cause of action existed at the date of the commencement of the suit, since the court house was unfinished, and there were no water-closets as yet built. It is said further that there was no order by the county court for the sewerage to be constructed for the water-closets, nor had the building committee taken any action in regard to sewerage for the closets not then built. Defendants insist that the object of the building commissioners in laying the sewer pipe was to drain the water from the basement of the new court house. It is said that on the 23d of November 1899, --the date of the filing of this bill,--the walls had been about finished, but the building had not been covered, and, to prevent the rain water from accumulating in the basement and injuring the work already done, the quarterly county court, on the 3d day of October, 1899, passed the following order: "Ordered by the county court, that the court-house building committee be, and they are hereby, instructed to take such steps as they may think best in regard to the protection of the basement of the new court house." It is insisted that, acting under this order, the committee awarded the contract for a drain pipe to convey the water from the basement of the court-house building to a point near northeastern boundary of the town, where it was to empty into a ditch. It is further said that this was the natural outlet for the water for the entire central and northeastern portions of the town, including the court square and the court-house building, and had been used as such since the building of the town. The chancellor, as already stated, modified the injunction so as to permit the completion of the sewer, and its use as a means of draining the water from the basement of the court house. But defendants are not satisfied with this modification of the injunction, but have appealed from the decree of the chancellor denying them the right to connect the water-closets and urinals of the new court house with this sewer pipe. The two positions assumed by defendants are somewhat inconsistent. But, upon a review of the testimony, we agree with the chancellor that defendants at the date the bill was filed were making provision to convey and empty the sewage from said water-closets and urinals, and that it was the purpose of the defendants to connect the water-closets of the court house with said sewer pipe. But it is argued that, if the sewer is used for the purpose of discharging the sewage from the court house, it does not follow that it would create a nuisance; that a sewer is not a nuisance per se, and there is no presumption that it will become a nuisance. The case of Kirkman v. Handy, 11 Humph. 406, 54 Am. Dec. 45, is cited, in which a bill was filed to restrain the defendant from proceeding to erect a livery stable in the city of Nashville, upon the ground that such stable would be a nuisance to the neighborhood, "by reason of...