Village of Dwight v. Hayes

• Decision Date: 08 May 1894
• Citation: 150 Ill. 273,37 N.E. 218
• Parties: VILLAGE OF DWIGHT v. HAYES.
• Court: Illinois Supreme Court

150 Ill. 273

37 N.E. 218

VILLAGE OF DWIGHT

v.HAYES.¹

Supreme Court of Illinois.

May 8, 1894.

Appeal from appellate court, second district.

Bill for injunction by John A. Hayes against the village of Dwight. Defendant obtained a decree, which was reversed by the appellate court. Defendant appeals. Affirmed.

Mayo & Widmer, George W. Patton, and R. S. Mcllduff, for appellant.

Reeves & Boys, for appellee.

BAILEY, J.

This was a bill in chancery, brought by John A. Hayes against the village of Dwight, to restrain the village from constructing a system of sewers so that the same will discharge the sewage of the village into Gooseberry creek, a stream of water running through the complainant's land. The complainant owns and resides on a farm, containing about 212 acres, situated in Grundy county, and adjoining the south line of the county. The village of Dwight is an incorporated village, having a population of about 1,600, and situated in Livingston county, and about a mile or a mile and a half south of the south line of Grundy county. Gooseberry creek has its head waters several miles south of Dwight, in two separate branches, one of which runs through the village, the two forming a junction about a half mile below on the land of David McWilliams, and running thence in a northerly direction across the complainant's land, which adjoins that of McWilliams on the north, and emptying into Mazon creek. Gooseberry creek, as the evidence shows, is a stream in which water constantly flows except during certain portions of the dry weather in summer, and during that time it contains pools of water at different places along its channel, sufficient in quantity and of sufficient purity to furnish drink for cattle and other domestic animals kept by the owners of the lands through which it flows. The complainant, as it appears, occupies and uses his land as a stock farm, and has been accustomed, for many years, to use the creek for watering his stock, and he has also been accustomed, during the winter season, to take from it his supply of ice for use during the summer. In the summer of 1892 the village of Dwight commenced the construction of a system of sewers, which were to be so constructed as to discharge the sewage of the village into Gooseberry creek at a point on the land of McWilliams, a short distance below the confluence of the two branches of the creek. The complainant thereupon filed his bill to restrain the village from discharging the sewage from its proposed system of sewers into the creek, alleging that there was a constant supply of living water in the creek, sufficiently pure and good for stock; that the complainant was using his farm as a stock farm, and relied upon the waters of the creek for the purpose of watering his stock; and that he cut ice therefrom, and stored the same at his residence for the use of his family; and that the discharge of the sewage into the creek would render the water thereof unfit for the domestic uses above referred to, and would also cause noxious odors to spread over the complainant'sfarm, and about his place of residence, thereby rendering the same unhealthful and uncomfortable as a place in which to live, and so would cause irreparable damage to the complainant's premises and place of residence, and would create a nuisance. On the filing of the bill, an injunction pendente lite was awarded as prayed for, and, an answer and replication having been afterwards filed, the cause was heard on pleadings and proofs, and at such hearing a decree was entered by the circuit court dismissing the bill at the complainant's costs for want of equity, but without prejudice to the complainant's right to prosecute an action at law. On appeal by the complainant to the appellate court, the decree was reversed, and the cause remanded, with directions to the circuit court to enter a decree in favor of the complainant making the injunction perpetual. From the judgment of reversal, the village of Dwight now appeals to this court.

A large number of witnesses were examined, and the testimony in the record is very voluminous, and to a very considerable degree conflicting. Among other things, the opinions of many witnesses were taken as to what would be the probable effects upon the waters of the creek, as they flow across the complainant's land, and upon the surrounding atmosphere, of discharging the sewage of the village into the creek a short distance above his premises. While some of these witnesses seem to be of the opinion that no serious pollution of the water would result, and no nuisance be created, we concur in the opinion of the appellate court that the decided preponderance of the evidence sustains the conclusion that the water would thereby become so polluted as to render it unfit for domestic use, or for the drink of domestic animals; and this view is strongly reinforced by the inherent probabilities of the case. Such being the case, there can be no doubt, as it seems to us, as to the right of the complainant to relief in equity. As said by Mr. High, in his treatise on Injunctions (section 810): ‘Frequent ground of application for the preventive aid of equity is found in cases of the pollution of water by the flow of sewage from towns or cities into streams whose waters are thereby injured and rendered unfit for use. In cases of this nature the preventive jurisdiction of equity is well established, the general doctrine being that the fouling or pollution of water in a stream by such sewage constitutes a nuisance, and affords sufficient ground for relief by injunction. In conformity with this doctrine, the owners of land upon the banks of a river below a city may enjoin the city authorities from polluting the river by sewage.’ In Gould on Waters (section 546) the rule is laid down as follows: ‘An authority over sewage is not an authority to commit a nuisance. An owner of land upon a stream below a city is entitled to an injunction against injury by the outflow of sewage. So, an injunction will lie to prevent the opening of additional sewers into a stream in such a manner as to render the water unfit for use, and it is not a defense that the city can lawfully enter upon the premises of those who use the sewer for the purpose of abating the nuisance. And, if a few householders upon the stream have used it as a drain, a modern board cannot found a prescriptive right to corrupt the stream on such usage. If any nuisance of this kind be shown, though causing inconsiderable damage, equity will enjoin its continuance. In deciding upon the right of a proprietor to an injunction against such a nuisance, the court will not consider the convenience of the public. The fact that a large population will be affected by an interruption of the use of the system of sewers is immaterial, where the rights of an individual are invaded.’ See, also, Wood, Nuis. § 683 et seq. See, also, Dierks v. Commissioners, 142 Ill. 197, 31 N. E. 496. It is true the creek in question is not a running stream during all portions of the year, but during very dry weather contains only small pools or ponds of water standing in the deeper places along its channel. But this fact manifestly would only tend to aggravate the nuisance, especially in those places situated, as is the complainant's land, but a little...