Sewerage District No. 1 of Siloam Springs v. Black

• Citation: 217 S.W. 813,141 Ark. 550
• Decision Date: 19 January 1920
• Docket Number: 122
• Parties: SEWERAGE DISTRICT NO. 1 OF SILOAM SPRINGS v. BLACK
• Court: Arkansas Supreme Court

217 S.W. 813

141 Ark. 550

SEWERAGE DISTRICT NO. 1 OF SILOAM SPRINGS v. BLACK

No. 122

Supreme Court of Arkansas

January 19, 1920

Appeal from Benton Chancery Court; B. F. McMahan, Chancellor affirmed.

Decree affirmed.

Tom Williams and A. L. Smith, for appellants.

1. The court erred in overruling the demurrer filed by the city of Siloam Springs to the complaint. There was a clear misjoinder of parties defendant and plaintiffs had an adequate remedy at law. 113 Ark. 239.

2. The court erred in overruling the motion of the city to make the complaint more definite and certain. Dillon on Mun. Corp. par. 1051-2 and 1051 A; 117 Am. St. 749; 188 Miss. 456; 42 So. Rep. 204.

3. The court erred in refusing to sustain a special answer and plea in abatement filed by defendants as plaintiffs had an adequate remedy at law. 22 Cyc. 771; 145 Pa.St. 324; 27 Am St. 694; Dillon Mun. Corp., 1051-1051 A, 1052; 117 Am. St 749; 188 Miss. 456; 42 So. 204; 93 Ark. 362; 87 Id. 213; 92 Id. 538; 91 Id. 58; 85 Id. 544; 2 Dillon, Mun. Corp. (2 Ed.), par. 1046 and notes; 27 Am. St. 694.

4. The court erred in not dismissing the petition for want of equity and in not finding for appellants upon the evidence in the case. It was not a nuisance to be enjoined even if private parties were injured in their private rights. 67 Am. Dec. 186; 22 Barb. (N. Y.) 297; 107 Am. St. 222; 53 N.Y. 55; Misc. 726; 5 Ohio N. P. 39; 107 Ark. 422. All parts of the city were drained into Salt Creek, a natural outlet; the sewer was properly erected and maintained, and every precaution taken to prevent noxious odors, pollution of water, air, etc. 153 Ind. 337. Equity will not restrain where the power is lawfully exercised and the greatest good to the greatest number of residents is attained and the work is skillfully done. 135 Ind. 547; 41 Am. St. ; 110 Mass. 216; 14 Am. Rep. 592; 112 Ind. 542; 23 Id. 381. See also 79 Ind. 491; 41 Am. St. 618; 17 Ind. 267; 14 Id. 399; 75 Id. 241; 39 Am. Rep. 135; 19 Id. 326; 7 Cush. 53-85; 121 Ind. 331-337; 14 Utah 47; 2 Story Eq. Jur. 925-928; High on Inj., §§ 459, 483; Eden on Injunc., 231. The question of reasonableness is one of fact. 44 N.H. 580; 84 Am. Dec. 105; 15 N.W. 167. Cities as riparian owners are entitled to the reasonable use of a stream as an outlet for sewers, and if pollution occurs no liability occurs. 58 N.E. 142; 302 Pa. 474.

The sewer was constructed and operated in the most skillful manner, and if injury resulted injured parties were remitted to their remedies at law. Supra. 2 Edwards 188; 9 Paige 233; 4 Id. 444; 65 Conn. 365; 56 Ark. 205.

The decree is indefinite and uncertain in its directions and contradictory in its findings.

R. F. Forrest, Verne McMillan and L. S. Forrest, for appellee.

1. There was no error in overruling the demurrer, because it did not raise the point of defect of parties and plaintiff had no adequate remedy at law.

2. Nor did it err in overruling the motion to make more definite and certain, because it was sufficiently definite and there is no record of such a motion.

3. No error in refusing to sustain the so-called answer and plea in abatement, because a plea in abatement is no method to attack the jurisdiction of the court, and plaintiffs had no adequate remedy at law.

4. No error in overruling the motion to quash depositions of plaintiffs. The motion was not verified. The certificate of the notary shows they were duly sworn to, and all the defendants were present at the examination and cross-examination.

5. The court did not err in not dismissing for want of equity nor in finding against appellants upon the whole evidence, because a dangerous nuisance was proven and appellees' evidence was conclusive. The law is well settled in Arkansas and all other States except perhaps Indiana. On these points and the others made by appellant, see Kirby's Digest, § 6094; 33 Ark. 497; 2 Wood on Nuisances (3 Ed.), 1150-1174. The remedy at law was not adequate, and there was a nuisance. 2 Wood on Nuisances, 1174; 119 Cal. 387; 51 P. 557. It was injurious to health and to property of plaintiffs. 84 Hun 281; 32 N.Y.S. 442.

Equity will enjoin the pollution of stream by sewage. 150 Ill. 273; 37 N.E. 218; 42 N.E. 77; or where it is a nuisance. 46 Ark. L. R. 169; 119 Ark. 169; 2 Wood on Nuisances (3 Ed.), 801, 1177.

6. A demurrer properly raises the question of jurisdiction. Kirby's Digest, § 6093.

7. It is no defense that a nuisance is properly conducted or maintained carefully (102 Ark. 288), if it is so built and used as to destroy the comfort of the owners and occupants of adjoining property-holders. 85 Ark. 544-552. The law does not authorize the dumpage of sewage on appellee's premises. 103 Ark. 270.

8. Where a party appears, he can not object that no legal notice was given. 9 Ark. 518.

9. The statements of witnesses may be written by any one the officer calls to do the writing. Kirby & Castle's Digest, § 3407; 86 Ark. 259. The depositions were duly sworn to and certified.

10. The court properly refused to sustain the special plea in abatement.

11. The court did err in not dismissing the petition for want of equity, but did not err in finding for appellees on the whole case. A dangerous nuisance was proven. 102 Ark. 288; 85 Id. 553-4; 5 Pom. Eq. Jur., §§ 539, etc.; 93 Ark. 53; 77 Am. St. Rep. 335; 92 S.W. 931-2; 42 Am. St. 367; 50 Id. 158; Spelling on Inj. (2 Ed), § 676; 15 Cyc. 728; 54 Ark. 144; Kirby's Dig., § 3965; 63 P. 557; 60 S.W. 593; 47 S.W. 70; High on Inj. (4 Ed.), §§ 746, 773-4; 119 Ark. 169. The acquiring of the right-of-way by condemnation does not give the right to maintain a nuisance. 93 Ark. 53; 77 Am. St. 53; 92 S.W. 931; 119 Ark. 169. Nor does an ordinance authorize appellants to empty their refuse on appellees' premises. 103 Ark. 270; 119 Id. 169.

12. The injunction should have been made permanent after a reasonable time to repair. Supra. The nuisance was continuing and grew more aggravated. 102 Ark. 288. This case is not different from 119 Ark. 169. The evidence established every fact proved in that case. Where a nuisance is proved, it is no defense that it was produced scientifically or carefully operated. 102 Ark. 288. The fact that sewers are necessary, and that the statute directs that they follow as far as possible the natural drainage, does not justify a city in discharging sewers into a stream to the damage of land owners. 155 Mo. 283; 119 Ark. 169; 113 Id. 442; 68 Conn. 263; 70 Id. 435; 39 A. 796; 9 Col. App. 828; 48 L. R. A. 691; 71 Hun. 232; 1 Wood on Nuisances (3 Ed.), § 434.

13. The decree here is not fatally defective; it is definite enough. 119 Ark. 169.

On the whole case no prejudicial errors appear.

OPINION

WOOD, J.

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 plaintiff's 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' dwelling, 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 employees and in accordance with the Board of Health, 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.

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