Upjohn v. Board of Health of Richland Tp.

• Decision Date: 05 October 1881
• Court: Michigan Supreme Court
• Parties: UPJOHN v. BOARD OF HEALTH OF RICHLAND and others.

9 N.W. 845

46 Mich. 542

UPJOHN v. BOARD OF HEALTH OF RICHLAND and others.

Supreme Court of Michigan

October 5, 1881

The court of chancery has an undoubted jurisdiction to enjoin the action of township boards of health in establishing burial places, should they proceed to exercise it illegally or improperly to the injury of others.

But these boards have large discretionary powers, the exercise of which will not be interfered with until a clear case is made out. It must be intended until the contrary is shown that they are acting in good faith and in the line of their duty.

Complainant sought to enjoin the location of a burying ground near his residence, for the reason, among others, that it would destroy his well. Held, to be a strong circumstance against his application that he had voluntarily bought and located his residence in the immediate vicinity of a burying ground which defendants were merely proposing to enlarge without bringing it nearer.

And it appearing further that complainant's barn yard was nearer the well and more likely to injure it than the burying ground, held, that an injunction should be denied.

Quaere whether there can be any legal ground for complaint for the pollution of subterranean waters when it is caused by a proper use without negligence of adjacent premises.

If there can be any such ground of complaint it can only be when the injury is of a very positive and substantial character.

Appeal from Kalamazoo.

E.M Irish and Dallas Bondeman, for defendants.

COOLEY, J.

This suit is instituted to restrain the township board of health of the township of Richland in the county of Kalamazoo from locating a burial place for the dead in the immediate vicinity of the dwelling-house of the complainant in the incorporated village of Richland in said township. The grounds of equitable jurisdiction which are assigned in the bill are, that the use of the proposed site for burial purposes will be detrimental to the health of the people of the village; that it will corrupt the water of their wells and render it unfit for use, and for these reasons become a public nuisance; and that it will also be especially injurious to complainant whose dwelling and well are near it. The defence to the suit is based on several distinct grounds one of which is that the authority to establish burial places is confided in this state exclusively to the boards of health, and is a discretionary authority which cannot be controlled and overruled by the courts.

There is no doubt that under the statutes boards of health have large discretionary powers in providing for the interment of the dead. It is made the duty of the township board for each township to purchase therein so much land for burying grounds as shall be necessary for burying the dead of such township, provided suitable grounds can be procured in the township for the purpose, and if not, then in an adjoining township. They are also to make all regulations which they may deem necessary for the interment of the dead, and respecting burying grounds for their township. Comp.Laws, � 1696. These powers they must exercise according to their own judgment; and no appeal is provided for, whereby their action can be reviewed by any superior authority empowered to substitute its judgment for theirs. But if discretion is abused or their judgment improperly exercised, there is no doubt of the right of the judiciary to restrain the abuse. A superintending authority over all inferior tribunals is expressly conferred upon the circuit courts by the constitution--art. 6, � 8--and this will be exercised not only to keep them within their jurisdiction, but also to restrain any oppressive exercise of powers whereby the rights of the public or of individual citizens will be invaded. As is said in Cooper v. Alden, Har.Ch. 72, 91, the court of chancery "has undoubted jurisdiction to interfere by injunction where public officers are proceeding illegally or improperly under a claim of right to do any act to the injury of the rights of others;" and it has been exercised in many cases, under a great variety of circumstances, and against state officers as well as those of inferior grade. Palmer v. Rich, 12 Mich. 414; Ryan v. Brown, 18 Mich 196; Kinyon v. Duchene, 21 Mich. 498; Merrill v Humphrey, 24 Mich. 170; Clement v. Everest, 29 Mich. 19; Bristol v. Johnson, 34 Mich. 123; Marquette, etc., R. Co. v. Marquette, 35 Mich. 504; Flint, etc., Ry. Co. v. Auditor General, 41 Mich. 635; Folkerts v. Power, 42 Mich. 283.

But while it is undoubted that the court has jurisdiction, it is equally clear that the jurisdiction should only be exercised when a plain case has been made out. Defendants are acting officially, upon a subject which by law and the choice of their fellow-citizens has been committed to their charge, and it must be intended that they are acting in good faith until the contrary appears. The ordinary presumption is that officers perform their duty; and this will support the action of boards as well as of officers acting singly. Lacy v. Davis, 4 Mich. 140; Thayer v. McGee, 20 Mich. 195; Stockle v. Silsbee, 41 Mich. 615. The principle is forcibly stated in Cooper v. Williams, 4 Ohio, 253: "Although a case strong enough to justify our interposition may arise from corruption, from malicious intention or caprice, yet in the absence of these the court would pause before it will assume to control the discretionary powers the law intends to confide to them. The security for the faithful exercise of this discretion is found, not in the superintendence of courts of justice, but in the individual representations of the commissioners, in the tenure of their office, in their acting openly on the rights of others in the face of the people vigilant to watch and acute to discern, and in their being exposed to the overwhelming force of public opinion."

Has the clear case, required by this principle, been made out by this complainant? The defendants insist that it has not. They deny that the evidence shows the proposed burying ground will be any nuisance whatever, either public or private. They say further that if it can be an inconvenience or annoyance to complainant he is precluded from complaining of it, for the reason that it is to be merely an addition to or extension of an existing cemetery by the side of which the complainant purchased and located his residence many years since, thereby voluntarily assuming all the natural and inevitable consequence of being near it, and that his well, which he fears is to be ruined by it, is in no danger beyond that to which he has voluntarily exposed it, and which, in fact, has already rendered it unfit for use. Such in brief is the issue which is made by the answer.

The evidence is voluminous, but there is less conflict than is usually encountered in such cases. The village of Richland appears to be a small hamlet containing less than 300 people, situated in a level country of prairie formation, and with its population on or near a highway running through it east and west. Another highway called Park street crosses this at right angles, leaving most of the population to the west. Some 60 rods east of the crossing was located the old burial ground mentioned in the answer, and this has been used many years until it is nearly filled with graves. It is admitted that while this ground was thus being used the complainant purchased the farm adjoining it on the east, his residence being 20 rods or so beyond the east boundary of the burying ground; and this is where he now resides. No other residence is so near the grounds except one on the opposite side of the highway about the same distance to the west. The grounds which the board of health have now procured for cemetery purposes are directly across the highway from the old grounds, but not extending so far east by two rods, and this, as well as the fact that they are on the other side of the highway, place them a little further from complainant's residence. At first blush, therefore, there does not seem to be a very strong equity in complainant's case. The nuisance he...