Satren v. Hader Co-Operative Cheese Factory

• Court: Minnesota Supreme Court
• Writing for the Court: Holt
• Citation: Satren v. Hader Co-Operative Cheese Factory, 202 Minn. 553, 279 N.W. 361 (Minn. 1938)
• Decision Date: 29 April 1938
• Docket Number: No. 31584.,31584.
• Parties: SATREN v. HADER CO-OPERATIVE CHEESE FACTORY.

279 N.W. 361

202 Minn. 553

SATREN v. HADER CO-OPERATIVE CHEESE FACTORY.

No. 31584.

Supreme Court of Minnesota.

April 29, 1938.

Appeal from District Court, Goodhue County; Charles P. Hall, Judge.

Action to enjoin the discharge of whey, washings, and sewage from a cheese factory into a creek and for damages for pollution of a creek by Hilda Satren against Hader Co-operative Cheese Factory. Judgment for plaintiff, and, from an order denying new trial, the defendant appeals.

Remanded with directions to amend order for judgment, and as so amended order denying new trial affirmed.

A. J. Rockne and E. B. Rockne, both of Zumbrota, for appellant.

Thomas Mohn and Horace W. Mohn, both of Red Wing, for respondent.

HOLT, Justice.

Defendant appeals from the order denying a new trial. The action was to enjoin defendant from discharging the whey, washings, and sewage from its cheese factory into a spring-fed run or creek which passes through plaintiff's farm, and to recover damages for polluting the stream. There was a trial to the court and findings in favor of plaintiff and for judgment permanently enjoining defendant from discharging sewage and whey into the stream and $378 damages and costs.

The short facts are these: Hader is a small hamlet in Goodhue county, this state, wherein defendant, organized as a cooperative company, built a cheese factory and started operating the same in September, 1920. A spring-fed rivulet or creek passes near the factory and then northerly and enters plaintiff's 42-acre farm about 1,000 feet below where defendant's drain enters it. The creek divides plaintiff's 20-acre fenced pasture in about two equal parts, thence meanders northerly some 16 miles, emptying into Cannon river near Welch. In its course other branches or rivulets enter, and it is known as Belle creek. Plaintiff's little farm has commodious buildings. It is the family home, and is used as a dairy farm. Defendant obtains the milk for the factory from farmers living within a radius of about 6 miles of Hader. It is a growing industry; and an additional vat of about 8,000-pound capacity was installed about ten years ago. The record gives the impression that the waste from the factory did not in the beginning cause much complaint, especially as long as the patrons on delivery of the milk took back the whey, as they are permitted to do, for hog and chicken feed. In a cheese factory, as in a creamery, much water with some cleansing ingredient is used. The disposal of the water after so used for cleansing purposes is a problem for every cheese factory and creamery. Where possible, it is discharged as sewage in some run or stream. In the instant case a toilet discharges into the drain, but scarcely any one other than the three employees of defendant make use thereof. The evidence is clear that the whey is responsible for the sludge and noxious odor that emanates from and pollutes this stream. There is no evidence that the residue from the washings aside from the whey would in any manner pollute the stream or cause offensive odors when it reaches plaintiff's land. The evidence is convincing that when the whey was taken away by the patrons of defendant the nuisance on plaintiff's premises abated. At first, when the capacity of the factory was smaller and most of the whey was taken away by those who brought the milk, there was no complaint of any nuisance on plaintiff's farm. On this appeal defendant challenges (a) the jurisdiction of the court over the subject matter, (b) certain findings are assailed, (c) there is a claim of a prescriptive right to pollute the stream, and (d) that injunctive relief, which would destroy a lawful business to abate a trifling injury to plaintiff, is not warranted.

It is asserted that chapter 273, Laws 1927, sections 5377-1 to 5377-6, inclusive, Mason's Minn.St.1927, gave sole jurisdiction to the State Board of Health to administer and enforce all laws relating to the pollution of waters within the state and repealed by implication, if not in express words, Mason's Minn.St.1927, § 9580, relating to the abatement of nuisances by the district courts. The statutes relating to the State Board of Health prior to the enactment of this chapter 273, Laws 1927, specifically provided that nothing therein should curtail the court's power to administer the usual legal and equitable remedies in case of nuisances, or of improper interference with private rights. Section 5377. The repeal provision of chapter 273 does not in terms repeal section 5377 of the Code nor section 9580 thereof. Nor do we see any such inconsistency between the provisions of chapter 273, Laws 1927, Mason's Minn.St.1927, §§ 5377-1 to 5377-6, and said section 9580, that the latter must be held repealed by implication. Harris v. Mackintosh, 133 Mass. 228, held a statute similar to section 9580 unaffected by a statute of the same import as said chapter 273, Laws 1927. There is nothing in our decisions or statutes which requires either the local or the state board of health to take action upon an alleged private nuisance of water pollution before a court may take jurisdiction thereof. We hold that chapter 273, Laws 1927, does not affect the remedy entrusted to the courts by section 9580.

No finding of fact is challenged except by this assignment: "The court erred in holding and deciding that odor alone could affect rental value of real estate." We think defendant's counsel misinterprets this finding: "That in the pools [of this creek] there settled whey floating or suspended in the water which emitted odors and made the waters offensive but that it was not such as to cause injury or death to cattle." The evidence is replete that the sludge from the rotting whey stuck to the bottom and sides of the creek and the rocks therein, making the water turbid, grayish, and repulsive in appearance, in addition to emitting a very offensive odor. There was evidence that the stench from the creek on plaintiff's premises was perceived at a distance of over half a mile if down wind. However, offensive odors may sustain a recovery of damages. Johnson v. City of Fairmont, 188 Minn. 451, 247 N.W. 572.

An assignment of error is directed to the first conclusion of law, reading: "That the discharge of sewage into said stream is a nuisance, that no prescriptive right to so deposit has been acquired." Whether considering this as a conclusion of law or a finding of fact, it is of no avail to defendant. A prescriptive right to maintain a nuisance cannot arise unless the nuisance has continued in substantially the same way and with equally injurious results for the entire statutory period. Matthews v. Stillwater Gas & Electric Light Co., 63 Minn. 493, 65 N.W. 947; Brede v. Minnesota Crushed Stone Co., 143 Minn 374, 173 N.W. 805, 6 A.L.R. 1092. The evidence here is that the nuisance was not uniform in character or results. There were periods when no discharge of offensive matters was made into the creek and only during the last few years was there cause for complaint.

The main contention is that, the injury to plaintiff being insignificant, only $63 a year in diminished rental value of the farm as found, an injunction should not issue which in effect prevents the operation of a large business of great value to the community. Decisions of high authority are cited and relied on by defendant, viz.: Sussex Land & Live Stock Co. v. Midwest Refining Co., 8 Cir., 294 F. 597; City of...