Smith v. City of Silverton

• Decision Date: 07 July 1914
• Citation: 71 Or. 379,142 P. 609
• Parties: SMITH ET AL., STATE BOARD OF HEALTH, v. CITY OF SILVERTON.
• Court: Oregon Supreme Court

142 P. 609

71 Or. 379

SMITH ET AL., STATE BOARD OF HEALTH, v. CITY OF SILVERTON.

Supreme Court of Oregon

July 7, 1914

Department 2.

Appeal from Circuit Court, Marion County; William Galloway, Judge.

Suit by Andrew C. Smith and others, constituting the State Board of Health, against the City of Silverton. From a decree for plaintiffs, defendant appeals. Reversed, and suit dismissed.

This is a suit brought by the state board of health to enjoin the city of Silverton from casting its sewage and drainage into Silver creek. This stream flows through the said city, and during the month of August contains a flow of about 35 second feet of water running therefrom through a thickly populated agricultural country. It is crossed below the city by various county roads, and is alleged by the plaintiffs to be used by residents along it and by their stock for drinking purposes. The city sewers empty into it on each bank, the flow of which amounts to .12 of a second foot. After taking evidence, a decree was rendered enjoining the defendant from emptying the sewer into the creek. Defendant appeals.

Grant Corby, of Salem, and Alfred Todd, of Lebanon (M. J. Van Valkenburg, of Silverton, on the brief), for appellant. E. R Ringo, of Salem, for respondents.

EAKIN J.

One of the defenses to the suit is that the present sewer system is a great improvement upon the offensive surroundings and unsanitary conditions existing prior to the construction of the sewer; but that does not affect the questions involved. The issue is as to whether the present sewer system is a menace to the lives and health of the citizens in the vicinity of the stream. There is very little testimony upon this question, except as to the pollution of the water, and that is only opinions of witnesses and no proof of the extent to which the water is used or the effect of such use.

First we may consider when and how a city may use a natural stream of water as a place of discharge for its sewer system. The rule as recognized by the courts is that a city has no right to cast its sewage into a stream so as to pollute it, to the injury of the lower riparian proprietors. There are exceptions to this ruling dependent on circumstances, but not involved here. It seems to be elementary that a city's right in that regard is dependent upon legislative authority unless it has first condemned the interests injuriously affected, but it seems that by legislative authority it may with impunity sewer into navigable or tidal streams, if done in a proper manner, though it is doubtful if the Legislature can authorize it to so use a stream, the bed and banks of which are in private ownership. See Grey ex rel. Simmons v. Paterson, 60 N. J. Eq. 385, 45 A. 995, 48 L. R. A 717, 83 Am. St. Rep. 642; Valparaiso v. Hagen et al., 153 Ind. 337, 54 N.E. 1062, 48 L. R. A. 707, 74 Am. St. Rep. 305; Smith v. Sedalia, 152 Mo. 283, 53 S.W. 907, 48 L. R. A. 711.

In this country, even if the legislative authority is conceded, still the question arises as to whether or not injuries are inflicted which amount to a public nuisance or a taking of private property in the constitutional sense; and, if so, the municipality is not protected or justified in such appropriation unless it has acquired the right by condemnation and the payment of compensation.

But the right or privilege granted to the council in the charter of Silverton to construct sewers is not implied authority to pollute the stream, as claimed by the defendant. Such would not be a governmental use or a duty imposed, but only a privilege to construct sewers. See Platt Bros. & Co. v. Waterbury, 72 Conn. 531, 45 A. 154, 48 L. R. A. 691, 77 Am. St. Rep. 335, which is fully annotated. A distinction in such cases must be noted between the right of a city, even with legislative authority, to pollute a stream in case the title to the bed and banks of the stream is in the riparian owner, and where the state is the owner of the stream. Platt Bros. & Co. v. Waterbury, supra, 48 L. R. A. at page 704, and notes at pages 698, 702; Hooker v. Rochester, 37 Hun, 181; Attwood v. Bangor, 83 Me. 583, 22 A. 466; Sayre v. Newark, 60 N. J. Eq. 361, 45 A. 985, 48 L. R. A. 722, 83 Am. St. Rep. 629; note to Georgetown v. Commonwealth, 61 L. R. A. 694, annotating the cases subsequent to the decision in the Platt Bros. Case. Counsel for the defendant cites some authorities upon general statements of the law, but the citations are not opposed to the views above expressed, when applied to the facts. 10 Am. & Eng. Enc. Law, 240, 248, and cases cited, and 40 Cyc. 594, cited by defendant, are in harmony here. It is said in the note to Platt Bros. & Co. v. Waterbury, supra:

"Whatever may be the rule with respect to surface water, there seems to be no authoritative decisions asserting the right of municipal corporations, merely as riparian owners and without legislative authority, either express or implied, to drain sewage into waters to the injury of others, although there is an intimation to that effect in Valparaiso v. Hagen.''

Defendant cites and places much reliance on the case of Valparaiso v. Hagen, supra, but this case stands almost alone on this question. Farnham on Water and Water Rights, at page 632, says that it is the only case that has refused to recognize the rule that mere permission to construct a sewer system or even to turn the sewer into a particular stream will not authorize the commission of a nuisance, and he discredits the case. He distinguishes Merrifield v. Worcester, 110 Mass. 216, 14 Am. Rep. 592, and criticises it at page 639. At page 625, where is a full discussion of the subject, he says that at times, when the flow of a stream is continuous and sufficient to dissolve and carry away the sewage, it may not affect the usefulness of the water, but that at other times it may do so, which renders it a nuisance and a menace to the health of the public.

"It is almost impossible for a municipal corporation of any size to turn its sewage into a water body for any length of time without creating a nuisance, and the question whether it has a right to make such disposal of its sewage depends, therefore, upon its right to create a nuisance, or the power of the Legislature to authorize it to do so. * * * The right of a municipal corporation to dispose of its sewage and garbage by turning it into water bodies will be materially simplified by first determining the necessity for doing so. * * * But if it shall appear that it is not only not

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