Town of Shelby v. Cleveland Mill & Power Co.
| Decision Date | 11 May 1911 |
| Citation | 71 S.E. 218,155 N.C. 196 |
| Parties | TOWN OF SHELBY et al. v. CLEVELAND MILL & POWER CO. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Cleveland County; Biggs, Judge.
Action by the Town of Shelby and another against the Cleveland Mill & Power Company. From a judgment for plaintiffs, rendered after sustaining a demurrer to the answer, defendant appeals. Affirmed.
Under Revisal 1905, § 3051, prohibiting the discharge of sewage into streams from which a public drinking water supply is taken, unless the same has passed through a well-known system of purification, the right which the state seeks to enforce is the right to protect public health; and therefore one is not exempted from the operation of that statute by discharging such sewage into a stream for over 20 years.
The plaintiffs seek to enjoin the defendant from turning its raw sewage into the First Broad river some eight miles above the intake of the Shelby waterworks system. The defendant answers, admitting the material allegations of the complaint and that it does empty the raw sewage from its mills and water-closets into said river, and claims the prescriptive right to do so, and further avers that the water supply of the plaintiff town is not contaminated thereby. The plaintiffs demur to the answer. The court sustained the demurrer and gave judgment against defendant, which excepted and appealed.
Burwell & Cansler, John F. Schenck, and Ryburn & Hoey, for appellant.
Bickett & White, and Webb & Mull, for appellees.
The plaintiffs do not rely upon the principles of the common law but rest their case solely upon section 3051 of the Revisal of 1905, which reads as follows: "No person or municipality shall flow or discharge sewage into any drain brook, creek or river from which a public drinking water supply is taken, unless the same shall have been passed through some well-known system of sewage purification approved by the State Board of Health; and the continual flow and discharge of such sewage may be enjoined upon application of any person." A violation of this statute is made a misdemeanor, punishable by fine and imprisonment, by section 3858.
The defendant contends, as a matter of law, that it cannot be restrained from emptying its raw sewage into the river in question, because that, prior to the enactment of the statute forbidding it, it had acquired the prescriptive right to do so, and that consequently the statute, if it was ever intended to apply to such a case, is void to the extent that it undertakes to deprive the defendant of a valuable property right without making compensation therefor.
The propositions sought to be maintained in their brief by the learned counsel for defendant are: (1) Whether the right to pollute a stream can be acquired by prescription, and, if it can, (2) whether, when such right has been acquired, it can be destroyed by a statute, making no provision for compensation therefor.
The statute upon which this action is founded is one of several laws enacted in pursuance of what appears to be an intelligent purpose upon the part of the General Assembly to protect the health and well-being of the citizens of the state, by guarding the watersheds and public water supplies of the cities and towns of the state from contamination as far as possible. The value and wisdom of such legislation is established by experience and needs no defense at our hands, even if it was a subject within our domain. It is in line with the most enlightened legislation of Great Britain and of states of this Union.
The preservation of the public health, as well as public morals, is a duty devolving on the state, the discharge of which is denominated an exercise of the police power, and it is under such power that such legislation is sustained and enforced.
This particular statute was considered by this court, in the case of City of Durham v. Eno Cotton Mills, 141 N.C. 615, 54 S.E. 453, 7 L. R. A. (N. S.) 321, and 144 N.C. 706, 57 S.E. 465, 11 L. R. A. (N. S.) 1163, and its constitutionality sustained at all points in well-considered opinions by Mr. Justice Walker, in which practically all the authorities are cited and discussed. It is unnecessary to review them here.
The only point not considered in those opinions is the contention of the defendant that by over 20 years' continuous usage it has acquired a prescriptive right to empty its raw sewage into the river, with which the state has no power to interfere without making provision for compensation. There are authorities to the effect that, as against a private individual lower down on the stream, the right to pollute it to a greater extent than is permissible at common law may be acquired by prescription by an upper riparian owner. But we are not now dealing with the rights of riparian owners, but with the rights of the public at large, as represented by the General Assembly.
It is well settled that, unless by legislative enactment, no title can be acquired against the public by user alone, nor lost to the public by nonuser. Commonwealth v. Moorehead, 118 Pa. 344, 12 A. 424, 4 Am. St. Rep. 601, and cases cited; 22 Am. & Eng. p. 1190. Public rights are never destroyed by long-continued encroachments or permissive trespasses.
If it was in the power of the General Assembly, in the exercise of its police power, as we have held in the Durham Case, to enact this law and make its violation a misdemeanor, it necessarily follows that the defendant could not acquire a right by prescription which would exempt it from the operation of the statute.
Whether the pollution of this stream by emptying raw sewage into it was a nuisance at common law it is unnecessary to consider. Since the passage of the statute it may be classified as a public nuisance, unless the provisions of the act be complied with. The learned counsel properly admits that, if a stream should be polluted, to the extent, and under such circumstances as to create a public nuisance, then no prescription would justify such nuisance.
The power of the General Assembly to pass all needful laws, except when barred by constitutional restrictions, is plenary, and the Legislature has the power to declare places or practices to the detriment of the health, morals,...
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