Sewerage Dist. No. 1 v. Black
| Decision Date | 19 January 1920 |
| Docket Number | (No. 122.) |
| Citation | 217 S.W. 813 |
| Parties | SEWERAGE DIST. NO. 1 OF SILOAM SPRINGS et al. v. BLACK et al. |
| Court | Arkansas Supreme Court |
Ark., and others. Judgment for plaintiffs, and defendants appeal. Affirmed.
Tom Williams and A. L. Smith, both of Siloam Springs, for appellants.
R. F. Forrest, of Siloam Springs, Verne McMillen, of Little Rock, and L. S. Forrest, of Fayetteville, for appellees.
This action was instituted by the appellees against the appellants to restrain the latter from maintaining a nuisance.
The complaint in substance alleged that the city of Siloam Springs had been organized into one improvement district known as sewerage district No. 1, for the purpose of constructing and maintaining a general sewer system therein; that a board of improvement was appointed, which board proceeded to construct and maintain a general sewerage system in sewerage district No. 1; that it had extended the mains from the sewerage district to and adjoining the residences of the plaintiffs, who lived beyond the corporate limits of the city and beyond the sewerage district; that beyond the corporate limits of the city of Siloam Springs the defendants maintain a disposal plant which sprays noxious odors in the air and discharges the sewage from the sewerage district into a stream of fresh, pure water running through plaintiffs' farms; that by such acts the stream is polluted so as to make the water unfit for animal or human use and is filled with noisome smells and nests or beds for the incubation of mosquitoes; that the defendants sprayed the sewage in a liquid form in the atmosphere near plaintiffs' dwellings, causing corruption of the atmosphere, noisome smells, flies, and mosquitoes; that by these acts the homes of plaintiffs are rendered disagreeable, uncomfortable, and uninhabitable; that by thus maintaining the sewerage disposal plant, the defendants have created a nuisance to the injury of plaintiffs which cannot be measured by monetary value; "that defendants by reason of their careless indifference, criminal, and reckless maintenance of the sewerage disposal plant, have caused plaintiffs great physical annoyance and discomfort;" that such acts are continuous and recurring.
They further alleged that the defendants without exercising the law of eminent domain against the plaintiffs were appropriating without due process of law the air and pure water of plaintiffs' farms, and will continue to do so to the irreparable damage of plaintiffs unless restrained.
Plaintiffs alleged that they had no complete or adequate remedy at law, and prayed that the defendants be perpetually enjoined from doing the acts and causing the conditions set forth in their complaint.
Demurrers to the complaint were filed and overruled, and the defendants answered denying specifically all its material allegations.
The defendants, among other things, set up in their answer that the sewerage system and disposal plant were constructed in accordance with the law, that the district was duly and legally formed, that the sewerage system and disposal plant were constructed by the most modern methods and by competent engineers, and that same were being operated in a proper manner under the supervision of properly instructed employés and in accordance with the board of health, and that the improvement was necessary for the public health of the general community.
The ruling of the court on the preliminary motions we deem it unnecessary to consider.
The material questions presented for our consideration are whether or not the court erred in its findings of facts and in the application of the law to those findings.
The court, among other things, found that the sewerage system and disposal plant were "managed, controlled, operated, and maintained jointly by the defendants," and that they were "so managed, maintained, and controlled as to constitute a nuisance."
The court further found that plaintiffs owned lands joining and in the vicinity of the disposal plant operated and maintained by the defendants; that flowing through the lands of L. W. Wallace and Anna Forrest is a stream of spring water with its source as the water supply of the city of Siloam Springs; that the defendants so operated and maintained its sewerage plant as to discharge the sewage into this stream, polluting its waters and making the stream unfit for animal or human use, thereby constituting a nuisance.
The court further found that the defendants, by spraying the sewage in a liquid form in the atmosphere near plaintiffs' dwellings, caused noisome smells, stenches, corruption of the atmosphere, flies, and mosquitoes; that the defendants by the above acts maintained a nuisance which rendered the enjoyment of the plaintiffs' farms, homes, and dwellings uncomfortable and uninhabitable to persons of ordinary sensibilities and depreciated their value as homes and places of abode.
The court further found that the operation and maintenance by the defendants of the disposal plant in the manner indicated had caused the plaintiffs great physical annoyance and discomfort, and that the injury to the rights of the plaintiffs could not be measured by monetary value; that the operation and management by the defendants of its disposal plant was continuous and recurring; and that the plaintiffs had no complete and adequate remedy at law.
The court thereupon entered a decree perpetually enjoining the defendants "from so operating, managing, and controlling the disposal plant as to constitute a nuisance to the plaintiffs."
The testimony is exceedingly voluminous, and unless this opinion were extended to great length it would be impracticable to set it out and discuss it in detail. Indeed, such discussion would be of no use as a precedent.
Suffice it to say that the testimony on behalf of the appellees tended to prove that the sewerage system and disposal plant in connection therewith, situated outside of the corporate limits of the city of Siloam Springs, were constructed and maintained in such a manner as to discharge sewage of the city in a running stream which flowed through the farms of some of the appellees, thereby polluting the same and making it unfit for the use of human beings and domestic animals; that the stream was filled with noisome smells; that the sewage was so discharged as to cause nests or beds for the incubation of mosquitoes and flies; that the atmosphere was so polluted with noxious odors in such proximity to the appellees' homes as to make them uncomfortable and indeed uninhabitable to persons of ordinary sensibilities. Some of the witnesses described the odors as like rotten eggs or carcasses of decaying animals. One of the witnesses said, "At times it was like a human body decaying." Others described the odor as "like a smell that comes from a toilet."
There was much testimony to the effect that the odors arising from the disposal plant and sewage discharge were so noisome as to render the condition of those who were subjected to them exceedingly uncomfortable, indeed practically unbearable.
The testimony tended to show that the effect of the discharge from the disposal plant into the water of the running stream passing through the farms of some of the appellees was to cause slime all in the bottom at the disposal plant and to give the water a murky, milky appearance where it ran into the creek; that mosquitoes were hatched there where the water ran out; and that wiggle-tails and mosquitoes were floating on the slime that was coming out of the sewerage plant.
Several witnesses stated that the water was discharged a few feet from the disposal plant into Sager creek, the running stream which flowed through the farms of some of the appellees; that the water above where the discharge occurred was clear like any other running water; and that the water below contained "sludges of matter filthy looking like human sewage." The scum on some of the eddy places and on the rocks was an inch or two inches thick, which gave off a very offensive odor.
There was introduced on behalf of the appellees an analysis of samples of water taken from the stream above and below where the sewage from the disposal plant emptied into the same, made by the bacteriologist of the University of Arkansas. These samples showed that the sample of water above was in fair condition and not polluted, while the same water from below was badly polluted with an intestinal type of bacteria.
One of the witnesses testified that, during the summer, matter from the disposal plant collected at the outlet turns to a brownisn color, then to a bluish black, which settles on the bottom of the creek, and for rods below the outlet the stuff varies from 2 to 10 inches deep; that he could trace the same all the way across his farm; that the substance broke loose from the bottom of the creek, came to the top, and at times great quantities of it stayed on top of the water, and green...
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