Thompson v. City of Malden

• Decision Date: 05 July 1938
• Docket Number: No. 5906.,5906.
• Citation: 118 S.W.2d 1059
• Parties: THOMPSON et al. v. CITY OF MALDEN et al.
• Court: Missouri Court of Appeals

118 S.W.2d 1059

THOMPSON et al. v. CITY OF MALDEN et al.

No. 5906.

Springfield Court of Appeals. Missouri.

July 5, 1938.

Appeal from Circuit Court, New Madrid County; Louis A. Schult, Judge.

"Not to be published in State Reports."

Action by S. S. Thompson and others, county judges for New Madrid County, and ex officio supervisors for Drainage District No. 33, and Drainage District No. 33, against the City of Malden and others to enjoin permanently the defendant city from connecting a sewer outlet with a ditch of the Drainage District. From a judgment granting a permanent injunction, defendants appeal.

Affirmed.

Ira Morris, of Malden, and Oliver & Oliver, of Cape Girardeau, for appellants.

James V. Conran, of New Madrid, for respondents.

ALLEN, Presiding Judge.

This is an appeal from a judgment of the Circuit Court of New Madrid County against defendants and in favor of plaintiffs, in an action in which Drainage District No. 33, plaintiff, was seeking an injunction to permanently restrain the defendant City of Malden from connecting a sewer outlet with Ditch A of Drainage District No. 33. The Circuit Court granted the plaintiff Drainage District No. 33 a permanent injunction, restraining the defendant City of Malden from using Ditch A, of Drainage District No. 33, as an outlet for the sewage from the disposal plant of defendant.

The plaintiffs' petition alleged the corporate existence of the drainage district and the City of Malden, and that Ditch A was a part of the drainage system of Drainage District No. 33; and that the City of Malden had constructed a sewage disposal plant and connected the outlet of the plant with Ditch A in Drainage District No. 33, in violation of Chapter 64, Article 2 of the Revised Statutes of Missouri, 1929, Mo.St.Ann. § 10809 et seq., p. 3532 et seq.

Plaintiffs further alleged that the City of Malden was discharging noxious chemicals and other substance and sewage into the ditch; and further alleged that such use of the ditch by the City of Malden was wholly unlawful and illegal and that the plaintiff had no adequate remedy at law, and prayed that the defendant City of Malden be permanently enjoined and restrained from so using the drainage ditch.

The defendants' answer admitted the corporate existence of the drainage district and the city, and that the drainage ditch was a part of the drainage system in said district and that the City of Malden had issued bonds for the purpose of constructing a sanitary sewer system in connection with the Public Works Administration of the Federal Government, from which it had secured aid in the building of said system.

The answer further alleged that the sewage disposal plant was of the most approved pattern and that the sewage was converted into an unoffensive and non-detrimental fluid state; that prior to the building of the disposal plant the city had obtained oral permission from the County Court to discharge the sewage into the ditch and had done so. It further alleged that later the County Court entered upon its records permission to discharge the sewage into Ditch A; that subsequently, by written record, this permission was set aside. It further alleged that the discharge of the sewage into the ditch would not render it any more unsuitable for human use than it was before; that Ditch A had a sufficient flow of water to carry away the discharge from the sewage disposal plant, without contaminating the water; and denied that the plaintiff was without an adequate remedy at law. It further alleged, that having once granted permission to connect the outlet of the sewer to the drainage ditch, the County Court could not revoke this permission.

After judgment for the plaintiffs, granting the permanent injunction, as prayed for, the defendants filed a motion for a new trial which was overruled and the appeal reaches here in due course and form.

The evidence disclosed that prior to March 23rd, the City of Malden voted bonds to build a sewage disposal plant and obtained aid from the Public Works Administration of the Federal Government. At the time of the voting of the bonds and obtaining the federal grant from the Public Works Administration the City of Malden had not obtained any agreement in writing from the drainage district regarding the use of Ditch A, and the only negotiations had were some oral negotiations between representatives of the city and county judges. Sometime in February, shortly after February the 10th, the engineers of the Public Works Administration came to Malden and the actual work on the disposal plant and the outlet was started. On the 23rd day of March, after the beginning of the work and after some of the pipe had been laid to the outlet, representatives of the city appeared before the County Court and requested the permission of the court to connect the outlet of the sewer with Ditch A in Drainage District No. 33. The court granted this permission and entered it of record on March the 23rd. On April 6th the County Court made an order setting aside its previous order of March 23rd, in which it had granted permission to the city to use Ditch A of Drainage District No. 33, and ordered a public hearing on the matter. This last order of the County Court setting aside its previous order was in writing and of record. Both orders were made during the February Term, 1936 of the County Court of New Madrid County.

The evidence disclosed that a hearing was had, and that on June 22, 1937 the County Court made another entry of record, refusing to contract with the City of Malden regarding the use of Ditch A, in Drainage District No. 33, as an outlet for the sewage disposal plant, and authorized the bringing of the injunction suit, to restrain the City of Malden from using it for such outlet.

The evidence disclosed that at no time did the City of Malden and Drainage District No. 33, through the proper parties, enter into a contract for the use of the drainage district, as an outlet for the sewage disposal plant, for a consideration.

O. R. Rhodes, S. S. Thompson and E. Proffer, members of the County Court of New Madrid County, identified in court the records mentioned above, and testified that they had had some conversation with representatives of the City of Malden regarding the use of Drainage Ditch A for the disposal of the sewage; and that they rescinded the written order made on March 23rd, by written order made on April 6th, and advertised a public hearing in the matter. They further testified that in the meantime representatives of the City of Malden had been urging them to contract with the City of Malden for the use of Ditch A; that between the time the court entered its order of record granting permission to use the ditch and then entered its order of record rescinding this order, thirteen days elapsed.

There was evidence on behalf of the plaintiff that Ditch A had been dry in the year 1930, and that in the summer and during dry years, there was very little water in this ditch and that there was an imperceptible flow, there being little or no current in the ditch, and that the water during the summer months became practically stagnant and did not flow appreciably. There was testimony as to the depth of the water in the ditch at various times and the flow of water at various places in the ditch, to the effect that at certain times of the year the depth of the water and the quantity of water in the ditch was reduced to a negligible quantity; that at other times of the year it flowed freely.

The defendants' evidence was to the effect that the ditch had never gone dry, except in 1930 when there was some construction work being done and a dam was built. There was seepage water always running into the ditch and that it flowed appreciably and some witnesses testified that the depth of the ditch was never less than 1 foot or 1½ feet. Other witnesses testified that they had never seen less than 3 feet of water in the ditch and that there was room in the ditch to turn a 16 foot boat around. The evidence of the witnesses of plaintiff and defendant conflicted sharply as to the amount of water that would be in the ditch at various times of the year.

The defendants produced George S. Russell, an engineer, who specialized in sanitary engineering and who was employed by the City of Malden to prepare the plans for the sanitary sewer system. He testified that this was a modern, up-to-date, efficient sewage disposal system. He further testified that the sewage from the City of Malden was taken into the disposal plant and its form was changed and the sewage by the treatment in the plant became inoffensive and harmless; that the liquid from the sewage flowed through an 8 inch pipe into Ditch A, and that the solids were left in the digesters and decomposed by bacterial action; that after it is decomposed and dried the sewage that remains, which is known as sludge, is removed and used for fertilizer; that during the normal operation of the plant the 8 inch pipe that carries the liquid from the disposal plant to Ditch A would be running full capacity, and that there were no obnoxious chemicals in the liquid flowing into Ditch A, and that the liquid would not pollute or render the water in the ditch unfit for any purpose for which it could be used prior to the discharge of the liquid into the ditch. He further testified that there was a sufficient flow of water in this ditch to carry away the liquid from the disposal plant and that it would require from 7½ to 8 cubic feet of water per second, flowing past the outlet to keep the water in the ditch in a sanitary condition. He further testified that there were some solids in the liquid flowing into the ditch but that if there was a sufficient flow of water in the ditch that the liquid from the disposal plant would not contaminate the water, but if the flow of water was halted or was not in sufficient quantity that the discharge of the liquid from the plant into the water would...