State v. Springfield Gas & Electric Co.

• Decision Date: 25 June 1918
• Docket Number: No. 1644.,1644.
• Citation: 204 S.W. 942
• Court: Missouri Court of Appeals
• Parties: STATE ex rel. WEAR v. SPRINGFIELD GAS & ELECTRIC CO.

204 S.W. 942

STATE ex rel. WEAR v. SPRINGFIELD GAS & ELECTRIC CO.

No. 1644.

Spring field Court of Appeals. Missouri.

June 25, 1918.

Appeal from Circuit Court, Greene County; Arch A. Johnson, Judge.

Suit by the State, on relation of Sam M. Wear, against the Springfield Gas & Electric Company. From a decree for plaintiff defendant appeals. Reversed and remanded, with directions.

Delaney & Delaney, of Springfield, for appellant.

BRADLEY, J.

This is an equitable proceeding instituted by the state on the relation of the prosecuting attorney of Greene county to enjoin the defendant from discharging into Jordan creek the waste water; oil, etc., from its gas plant in the city of Springfield. The cause was filed November 6, 1913, and evidence taken at intervals, mostly in 1914 as we understand the record, and judgment rendered on July 13, 1915, granting the relief prayed for, and from this judgment defendant appealed.

The defendant manufactures what is known as water gas, supplying the city of Springfield, and has its plant on or near the banks of Jordan creek in said city; and the discharge of waste water, oil, etc., from its plant is into this creek.

The petition charges, in substance: That the defendant is maintaining and operating, and will continue to maintain and operate, gasworks along the banks of Jordan creek in the city of Springfield, and that said creek is a towing stream, and when its waters are not polluted is the habitation of fish, and are used by the riparian owners for stock water, and are wholesome and healthful; that the defendant is now, and threatens to continue, throwing, running, and draining into said creek large quantities of coal tar, oil, carbolic acid, and other poisonous and deleterious substances in quantities sufficient to injure, stupefy, and kill the fish inhabiting said stream at the point where said substances are being discharged, and for a distance of 15 miles below ; and that said substances so discharged destroy the usefulness of the waters thereof to the public, and to individuals living along said stream, rendering said waters unfit for the use of stock, unsightly, and offensive to the happiness and comfort of the public, and injurious to the health of the public, and of the people living along said stream, and that said poisonous waters percolate through the earth and are liable to become injurious to the public health of the community by reason of the pollution of underground streams; that by reason of the discharge of said poisonous and deleterious substances into said stream large numbers of fish have been killed, and are continually being killed, and that said stream is so polluted that it is uninhabitable for fish, and that fish coming up said stream will be killed, and that the fish are the property of the state; that the defendant in throwing, running, and draining large quantities of coal tar, oil and carbolic acid and other poisonous and deleterious substances into said creek is maintaining and committing a public nuisance, and doing irreparable injury to the public's right in said fish, and that the public has the right to the use of said stream, unpolluted, for the aforesaid purposes; and that relator has no adequate remedy at law. The prayer is for an injunction to restrain the defendant from further throwing, running, or draining coal tar, oil, carbolic acid, or any other poisonous or deleterious substances into said creek, and for all proper relief.

The defendant, unsuccessful in demurrer which embodied a plea to the jurisdiction, and after motions to strike out, and to make more certain, answered by a general denial, and, further, that it and its assignors and predecessors have for more than 20 years openly, continuously, and notoriously engaged in the manufacture and sale of gas, and has in the same manner discharged its waste water into Jordan creek, all of which the state, its officers and agents, had notice; and likewise the citizens of Greene county, and owners of the land along said creek; that under its charter and under its contract with the city of Springfield it is required and compelled to manufacture gas; that in order to discharge its duty as a public utility company it must use water in the manufacture of gas, and that some disposition must be made of the waste water; that water, in its original state is used, and the most scientific process of manufacture is used, and that it is impossible to manufacture gas without some place for the discharge of the waste water ; that the said Jordan creek enters the city of Springfield in the northeastern part thereof, and flows in a general western and southwestern course through said city, and empties into Wilson creek about 3½ or 4 miles west of the city; that the said Jordan creek drains an area in said city about three-quarters of a mile south, and 1½ miles north of said creek; that in this area are many dwellings, barns, and mercantile establishments without sewer connections, and that the waste from these places drains into said creek; that immediately east of the city are, and have been for many years, packing houses and rendering establishments, and the city scavenger reduction plant, and that the drainage from these grounds is into said creek; that the main city sewer is laid in a course following generally the said Jordan creek, and that all the lateral and district sewers connect with the main, and that the sewer discharge is into said creek a short distance east of where said Jordan empties into Wilson creek; that prior to 1911 defendant and its predecessors manufactured coal gas, but since 1911 defendant has been manufacturing water gas only; that in 1911 it abandoned its old plant and erected its present plant.

The evidence shows that the discharge complained of is first from a three-fourths inch pipe, then into a three-inch pipe, and thence 1,200 feet in an eight-inch pipe to the Jordan, and that the discharge is black and tarish looking; and' that a discoloration is traceable to where Wilson creek empties into James river seine 15 miles from the city ; that there is an oily looking substance on top of the water; that there is the smell of coal tar on the water, and that both Jordan and Wilson creeks have been contaminated so that fish life is practically extinct therein, except possibly for a few miles up Wilson, from where it empties into Jame; river ; and also the waters have been rendered unfit in many instances for stock water, and at times there are ottensive odors.

The city's septic tank for the treatment of the sewage is located on the Jordan about 3½ miles west of the city, and a short distance east or northeast from where the Jordan empties into Wilson creek. At times the septic tank is out of repair, and the sewage entrance therein is closed, and a by-pass opened, and this permits the untreated sewage to flow into the Jordan, and thence into Wilson creek. This by-pass is sometimes used after an excessive rain or freshet. The surface drainage from many negro dwellings, private barns and stables, without sewer connections, is into the Jordan. Also the surface drainage from a number of mercantile establishments, factories, packing house, rendering plant, and city garbage reduction plant is into the Jordan. Junk yards and various rubbish heaps are along the banks of the Jordan in many places where it traverses the city. Surface drainage from the Frisco shops is into the Jordan, and also a Pintsch gas plant from the Frisco shops discharges into the Jordan a short distance southwest of defendant's plant. From the Frisco shops and reclamation plant are three three-inch pipes, which discharge into the Jordan an oily substance.

The evidence shows that all the fish were practically gone so far as the Jordan is concerned and also that part of Wilson of which the witnesses were speaking, from 3 to 5 years before defendant built its present plant, and began the manufacture of water gas. Also the evidence shows that the discharge from defendant's plant does not contain any perceptible quantity of water gas tar, and that coal tar, and carbolic acid are not present in any quantity from water gas discharge. Water gas tar is a heavy oil, and contains some carbon, and, when refined, is known as water gas pitch or dead oil. It has not the color nor the odor of coal tar, nor has it the smell of carbolic acid. Above defendant's plant there is an oily surface appearance on the water similar to the appearance below.

A chemical analysis of five samples of water, beginning at defendant's discharge pipe, and then at intervals down tho Jordan to the place of the city sewer discharge, was made. This analysis showed that from 300 feet below the point of discharge there was no trace of coal tar or carbolic acid, and the oil content decreased from 10.6 to 4.6 parts per million in a distance of 2,000 feet below the discharge. The analysis of the water taken at the city sewer discharge showed 25.2 parts per million oil, a great increase in the oil content of the water after the discharge of the sewage into it, but showed no trace of coal tar or carbolic acid. Five parts per million represents about one-half ounce of oil to 1,000 gallons of water, as explained by the expert witnesses.

All the evidence by landowners was from those who live on Wilson creek below where the city sewer discharges, and many of these had previously brought suit against the city for damages, alleging substantially the same grounds as set out in relator's bill.

Defendant makes many assignments of error, but, in the view we take, it is necessary to consider but two: (1) Can the cause as pleaded be maintained by the prosecuting attorney on behalf of the public? (2) On the whole record should defendant's demurrer, at the close of the whole case, have been sustained?

1. Relief by injunction is predicated upon the premise in the first instance that there is no adequate remedy at law. Two separate wrongs are charged in...