White v. Long
| Citation | 231 N.E.2d 337,12 Ohio App.2d 136 |
| Parties | , 41 O.O.2d 200 WHITE et al., Appellees, v. LONG et al., Appellants. |
| Decision Date | 30 January 1967 |
| Court | United States Court of Appeals (Ohio) |
Nichols, Speidel & Nichols, Batavia, for appellees.
Ely, Moore & Tilbury, Batavia, for appellants James B. Long and Eugene Maxfield.
Robert A. Jones, Pros. Atty., for appellant Board of Commissioners.
This appeal on question of law and fact is from the action of the court below in granting an injunction against the continued operation of a sewage disposal plant constructed by defendants, Long and Maxfield, owners and developers of a subdivision known as Longfield Acres, located in Miami Township, Clermont County, Ohio, in contemplation of serving some three hundred thirty-seven (337) houses. The disposal plant was constructed upon a tract of 1.385 acres purchased specifically for that purpose adjacent to the original subdivision acreage and plaintiff's (Herrle) line.
By stipulation, the case is before this court upon the record and exhibits of the original trial of February 14, 1963, wherein the court granted an injunction on the record made on motion for new trial of September 16, 1965, which the court granted, and the record made at the new trial of February 11, 1966, when the court again granted the injunction.
The disposal plant has been dedicated by the owners to the county of Clermont and through its proper officials operated as a part of the Clermont County Sanitary system. Effluent, in the form of treated, purified water, from the disposal plant is discharged into a small natural watercourse in existence upon the land of defendants at a point approximately 150 to 200 feet above plaintiff's (Herrle) property line, and continuing through the lands first of plaintiff Herrle, thence though lands of plaintiff White.
Plaintiffs made timely objections to the location and building of the plant which defendants, Long and Maxfield, nevertheless proceeded to construct.
Plaintiffs allege in their petition that the discharge from the disposal plant is offensive and odorous so as to constitute a private nuisance, for the abatement of which they had no remedy at law, with resulting irreparable injury.
Plaintiffs lossely allege a discharge of sewage and waste upon their lands, which is not the fact in this case, and this court will confine its consideration of the rights of the parties herein with reference to the discharge of the effluent from the disposal plant in the form of treated and purified water into the natural watercourse on defendants' lands as constituting an enjoinable nuisance.
Plaintiffs and certain family members and relatives testified (transcript of February 14, 1963) as to conditions of the stream in the summer of 1962; that it was grayish or milky in color; that there was an odor about it objectionable to them; rocks in the creek were discolored and they found dead crawfish; that their pleasure in gathering wild flowers, picking blackberries and picnicking in the area was interfered with, and their use in running cattle on the land was interfered with, inferring the livestock would not drink the water. However, they also testified the stream went dry in summer and they piped water back to the livestock. They complained about a foamy deposit caused by detergents along the watercourse. Plaintiff White testified as to the odor (transcript of February 1963):
Other witnesses placed the distance variously up to seventy-five feet. The plaintiffs testified the stream was too far away for any odor to be detected at their dwelling houses.
At the second trial of February 11, 1966, plaintiffs' witnesses simply reiterated their former testimony and said the conditions of which they complained had worsened. In addition, plaintiffs conceded drainage from septic tanks of an area referred to as Melody Lane and certain livestock barns found its way into this stream at a point above the disposal plant.
It is clear from the record that defendants, Long and Maxfield, sought and obtained the approval of all public officials...
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