Peck v. The City of Michigan City

• Decision Date: 09 March 1898
• Docket Number: 18,186
• Citation: 49 N.E. 800,149 Ind. 670
• Parties: Peck v. The City of Michigan City
• Court: Indiana Supreme Court

49 N.E. 800

149 Ind. 670

Peck v. The City of Michigan City

No. 18,186

Supreme Court of Indiana

March 9, 1898

From the LaPorte Circuit Court.

Reversed.

J. F Gallaher, C. R. Collins and J. B. Collins, for appellant.

W. H Breece, for appellee.

OPINION

Hackney, J.

This suit was by the appellant, in three paragraphs of complaint. To the first paragraph appellee's demurrer was sustained, and to the second and third paragraphs demurrers were overruled and answers filed, and to said answers demurrers were overruled. Said several rulings are here assigned as error.

Each of the paragraphs of complaint alleged that appellant owned real estate fronting upon the basin of the harbor at the city of Michigan City and maintained docks for the loading and unloading of merchandise to and from the water craft doing business at said city, said business constituting the principal source of value to said property; that in the year 1883 the city had constructed an extensive system of sewers for the drainage and sewerage of said city, the main sewer emptying into said basin near to the appellant's property; that said system of sewers carried and emptied into said basin continually large quantities of sewage and of sand from the surface drainage of said city, so filling said basin at the point where his docks were maintained; that the water became too shallow to admit water craft to approach his docks; that the sewage collected at the mouth of said sewer, becoming so foul and offensive as not only to make it disagreeable and offensive for persons to approach his docks with water craft, but to make it offensive to persons to conduct business upon his docks and upon his premises; and that by reason thereof his premises were rendered valueless, to his damage in the sum of $ 5,000.00.

In each of the second and third paragraphs of complaint it was alleged generally that the appellee had been negligent in the plans and construction of said sewer, in emptying it at said point, the stream in said harbor being sluggish and insufficient to carry away the deposits from said sewer; also, in not removing from the mouth thereof the sand and sewage so emptied, and in collecting said sewage at said point without furnishing any outlet therefor.

The third paragraph alleged that the damage to his property had accrued since the year 1890. All of the paragraphs sought damages and the first sought also to enjoin the further discharge of sand and sewage into said basin. The answers were that the causes of action did not accrue within six years.

It is a general proposition, which we think applicable to the first paragraph of complaint, that, in the construction of sewers and other public works authorized by law, cities are liable for consequential injuries resulting from negligence only. City of Richmond v. Test, 18 Ind.App. 482, 48 N.E. 610; City of Terre Haute v. Hudnut, 112 Ind. 542, 13 N.E. 686; Rice v. City of Evansville, 108 Ind. 7, 9 N.E. 139; City of Evansville v. Decker, 84 Ind. 325; Cummins v. City of Seymour, 79 Ind. 491; Weis v. City of Madison, 75 Ind. 241; Macy v. City of Indianapolis, 17 Ind. 267.

Said first paragraph does not proceed upon the theory of negligence, and does not seek to require the removal of the obstruction to the uses of the docks, but seeks to enjoin the use of the basin as a place to discharge sewage. The gist of any cause of action, under the facts pleaded, there being no negligence in plan or construction, must be in not caring for the sewage, when discharged into the basin, so as not to create and continue a nuisance, as we shall show hereafter.

The sufficiency of the second and third paragraphs of complaint is not presented. Each of said paragraphs proceeds upon the theory that the appellee, by her negligence, created a nuisance affecting the value of the appellant's property. Were the answers of the statute of limitations available? The argument proceeds upon the question as to whether the cause of action accrued from the time of the act resulting in the alleged nuisance, the construction of the sewer, or from the time of the injury sustained.

Conceding, as we must, from the absence of any question, the sufficiency of the second and third paragraphs of complaint, the cause of action relied upon in each is that by negligence the city has created and maintains a nuisance which directly affects public navigation and the appellant's enjoyment of his private property. If the complaint makes out this cause of action, it may be maintained upon authority. Franklin Wharf Co. v. City of Portland, 67 Me. 46, 24 Am. Rep. 1; Brayton v. City of Fall River, 113 Mass. 218, 18 Am. Rep. 470; Richardson v. City of Boston, 60 U.S. 263, 19 HOW 263, 270, 15 L.Ed. 639; Haskell v. City of New Bedford, 108 Mass. 208; Barron v. Mayor, etc., 2 Am. Jurist, p. 203; 2 Dillon's Munic. Corp. (4th ed.), p. 1330, note; 2 Dillon's Munic. Corp. (4th ed.), sections 1047, 1048, 1051 and 1051a; Beach on Public Corporations, section 760; Harrison's Munic. Manual, p. 400; Tiedman on Munic. Corp., section 355; State v. City of Portland, 74 Me. 268. We must, therefore, look to the character of the liability and of the remedy, to ascertain whether they are of the class against which the statutes of limitation are directed.

In the first of the above-cited cases, a case in all respects like the present, the liability is clearly shown. The rights and duties of the city, the general public, and the private property owners are there given as follows: "The right to build the sewer and outlet implies the right to use them for the purposes for which they were intended, to wit, for the collection and discharge of the debris of that part of the city, where they should be constructed, into the dock below low water mark. But it is to be borne in mind that the right to do this being in contravention of the right of the public, at common law, to use the sea as a public highway should be construed strictly and made to harmonize, as nearly as may be, with this paramount right of the public; for we do not, by any means, assent to the proposition of the counsel for the defendants that the right of navigation is subordinate to the right of sewerage. No authority has been cited to sustain that position, nor is it reconcilable with the well established doctrine of the common law. The public right to the navigation of the sea is not qualified or limited, at common law, by any private or municipal right of sewerage. 'It is an unquestionable principle of common law,' say the court, in Arundel v. McCullock, 10 Mass. 70, 'that all navigable waters belong to the sovereign or, in other words, to the public, and that no individual or corporation can appropriate them to their own use, or confine or obstruct them so as to impair the passage over them, without authority from the legislative power.' So in Commonwealth v. Charlestown, 1 Pick. 180, Parker, C. J., says: 'There can be no doubt that, by the principles of the common law, as well as by the immemorial usage of this government, all navigable waters are public property for the use of all the citizens; and that there must be some act of the sovereign power, direct or derivative, to authorize any interruption of them.' The same doctrine has been repeatedly held and applied in this state to tide water and navigable streams. In Gerrish v. Brown, 51 Me. 256, it was held that navigable rivers are public highways, and that if any person obstruct such a river by carting therein waste material, filth, or trash, or by depositing material of any description except as connected with the reasonable use of such river as a highway, or by direct authority of law, he does it at his peril, and is guilty of creating a public nuisance. The statute under which the defendants built the sewer and outlet is not to be construed, therefore, as authorizing an unnecessary infringement of existing rights and privileges; but it is to have such a construction that the wharf company shall be no further limited or restricted in these respects than may be reasonably necessary to accomplish the purpose of the statutes; and it is the duty of the defendants to exercise the power thus conferred in accordance with this rule. State v. Freeport, 43 Me. 198, 202; Newburyport Turnpike v. Eastern Railroad, 23 Pick. 326. The city has the right to use the sewer, and the wharf company the right of navigation and the use of their wharf. These respective rights are to be reasonably enjoyed. Neither party can destroy, or unreasonably and unnecessarily impair the rights and privileges of the other. The purpose of the defendant's erection under the statute is substantially accomplished by the discharge of the deposits at the outlet of the sewer. It cannot be presumed or implied that the statute contemplated the erection of a public nuisance below low water mark, by allowing the deposits from the outlet of the sewer to accumulate and remain there in such quantities as to menace the public health, obstruct navigation and seriously to impair, if not entirely to destroy, the plaintiff's erections, previously made under an act of the legislature of equal authority with that under which the defendants made their erection. Nor is it reasonable to conclude that the grant under which the plaintiffs extended their wharf into tide waters, implies the right thereby to create a public or private nuisance either in the manner of using their wharf or by its disuse and allowing it to go to decay. The purpose of the legislative grant to the wharf company was not to destroy or obstruct navigation and commerce but to facilitate them. So the purpose of the statute under which the city acted was not to authorize it to transfer a nuisance from the city to low water mark, or to create one there,...