Trevett v. Prison Ass'n Of Va.

• Decision Date: 14 June 1900
• Citation: 36 S.E. 373,98 Va. 332
• Parties: TREVETT. v. PRISON ASS'N OF VIRGINIA.
• Court: Virginia Supreme Court

98 Va. 332

36 S.E. 373

TREVETT.

v.PRISON ASS'N OF VIRGINIA.

Supreme Court of Appeals of Virginia.

June 14, 1900.

CHARITABLE CORPORATION — LIABILITY FOR TORTS—POLLUTION OF STREAM.

1. An association for the care of prisoners for compensation, which is managed by officers elected by itself, makes its own by-laws, and has the right to hold property, is not exempt from liability for its torts on the ground that it is a public corporation, though its objects are of a benevolent character, and it is required to make annual reports to the governor.

2. Plaintiff used the water of a stream for domestic purposes, and for a large number of cows, whose milk and butter made therefrom commanded the highest market price on account of their purity. Defendant, who owned and managed an institution on said stream above plaintiff, in which were housed several hundred persons, polluted the stream by emptying therein large quantities of refuse water, urine, and excrement, whereby plaintiffs dairy business was destroyed, the health of his fam ily seriously injured, and the market value of his lands greatly lessened. Held, that plaintiff was entitled to damages for such injuries to health and property.

Error to circuit court, Henrico county.

Action by one Trevett against the Prison Association of Virginia. From a judgment sustaining a demurrer, plaintiff brings error. Reversed.

A. R. Courtney and Pollard & Pollard, for plaintiff in error.

Robert Stiles, for defendant in error.

KEITH, J. Plaintiff in error sued the Prison Association of Virginia in an action of trespass on the case, and in his declaration states that he is the owner of a tract of land in the county of Henrico, upon which he and his family reside and carry on a dairy and butter business in addition to ordinary farming operations, keeping a large number of cows, which renders a supply of pure water essential; that the water for the use of the stock is supplied by a stream which was pure and uncontaminated, and without pollution of any kind, and that the milk and butter from the cows which drank the water was free from any objection or odor, and commanded the highest price on the market; that the defendant in error, the Prison Association of Virginia, became the owner of a certain tract of land upon said stream above the land of the plaintiff, so that the water which passed through the plaintiff's land, and was used by his stock and family, came through the defendant's land; that the defendant established upon its land a school for the confinement of youthful criminals, known as the "Laurel Industrial School, " and erected thereon numerous buildings for their accommodation, and collected and quartered therein several hundred persons, and furnished the buildings with washtubs, bathtubs, urinals, and closets, without the consent of the plaintiff, and against his protest, and emptied the refuse water, urine, and excrement therefrom into the stream, and thereby polluted the natural and pure water of the stream on plaintiff's lands below, and by reason thereof broke up and destroyed his dairy business, seriously injured the health of his family, impaired the healthfulness of his home, and greatly lessened the value of his property in the public estimation, and reduced Its salable value in the market.

The second count is substantially identical with the first, except that it charges the defendant with having erected wash houses, urinals, and closets, and constructed sewers from them to the stream where it passes through the defendant's lands, and by means of the said contrivances the defendant emptied large quantities of impure water, urine, excrement, and fecal matter, which mingled with the water therein, and by the natural flow of the stream polluted the water of the branch in and upon plaintiff's farm below, from which his stock and milch cows hadto obtain their daily supply of water to satisfy the demands of nature.

The third count is to the same effect, with the additional allegation that by reason of the impurities carried into it by means of the sewers erected by the defendant not only was the water contaminated, but that the atmosphere about plaintiff's home became impregnated with microbes of typhoid fever and malaria, and was made in every way injurious to health, and in consequence thereof the healthfulness of the plaintiff's farm was destroyed, and that of his family seriously impaired. By reason of the premises plaintiff claims to have suffered damage to the extent of $2,000, for which he sues.

The defendant demurred to this declaration, the demurrer was sustained, the suit dismissed, and a writ of error was obtained from this court by the plaintiff.

The first objection interposed by defendant in error is that it is not liable to be sued for its torts, and in support of this proposition relies upon the recent case of Maia's Adm'r v. Directors, etc. (Va.) 34 S. E. 617. It was there held that "an examination of the statutes creating and continuing this hospital shows that it was created and exists for purely governmental purposes, and is under the exclusive ownership and control of the state. It has no stockholders, no members even, except directors, having no interest in it or its affairs, who are appointed by the governor by and with the consent of the senate, and are in fact public, rather than corporate, officials, endowed with a corporate being for a more convenient administration of the duties imposed upon them by law, and are made liable to fines for any failure to perform their duties.

"The moneys necessary to defray the expenses of maintaining and caring for its inmates is provided by annual appropriations made by the general assembly out of the public treasury, and the manner of keeping and disbursing its funds is prescribed by statute. The directors are required to make quarterly reports to the auditor of public accounts showing in detail how they have been disbursed, and to report annually to the governor, for the information of the general assembly, the condition of the hospital, and the sums received and disbursed by them."

The prison association is not such a corporation. It is a voluntary association of individuals, who procured a charter for certain specified objects. It is not controlled by the state, but by its own corporate officials. It makes and enforces its own by-laws and regulations for the management of its affairs and property. It is invested with all powers, rights, and privileges conferred, and made subject to all the responsibilities, regulations, and restrictions imposed, by the common law and the statutes of this commonwealth upon corporate bodies. It may acquire and hold property, the value of the real estate held by it being limited to $100,000. Its general objects, it may be conceded, are of a benevolent character, as they look to the improvement of the government, discipline, and general management of prisons within this state, and the amelioration of the condition of prisoners, but for its services in this behalf it receives a reasonable compensation; and, while its officers are required "to make an annual report of their work to the general assembly of Virginia, " that does not constitute it a public corporation, and give it immunity from responsibility for its torts.

In 1 Wood, Nuls. (3d Ed.) § 427, it is said: "The right of a riparian owner to have the water of a stream come to him in its natural purity is as well recognized as the right to have it flow to his land in its usual flow and volume. But in reference to this, as with the air, it is not every interference with the water that imparts impurities thereto that is actionable, but only such as impart to the water such impurities as substantially impair its value for the ordinary purposes of life, and render it measurably unfit for domestic purposes, or such as causes unwholesome or offensive vapors or odors to arise from the water, and thus impairs the comfortable or beneficial enjoyment of property in its vicinity, or such as, while producing no actual, sensible effect upon the water, are yet of a character calculated to disgust the senses, such as the deposit of the carcasses of dead animals therein, or the erection of privies over a stream, or any other use calculated to produce nausea or disgust in those using the water for the ordinary purposes of life, or such as impair its value for manufacturing purposes."

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