Winchell v. City of Waukesha

• Decision Date: 09 April 1901
• Citation: 110 Wis. 101,85 N.W. 668
• Parties: WINCHELL v. CITY OF WAUKESHA.
• Court: Wisconsin Supreme Court

110 Wis. 101

85 N.W. 668

WINCHELL

v.CITY OF WAUKESHA.

Supreme Court of Wisconsin.

April 9, 1901.

Appeal from Waukesha county court; M. S. Griswold, Judge.

Action by Martha Winchell against the city of Waukesha to restrain defendant from emptying its sewage into Fox river. From an interlocutory judgment and injunction, defendant appeals. Modified.

The plaintiff, a married woman having a family, is the owner of a farm of about 115 acres, south of Waukesha, bounded on the northwest and west by a small, shallow, and sluggish stream called “Fox River,” which runs through the city of Waukesha, and is the only natural drainage course therefrom. On this farm, about 850 feet east of the river, is the residence of herself and family. About 10 years ago the city of Waukesha installed a sewer system, now aggregating about 14 miles, the whole of which empties at one point into said Fox river about a quarter of a mile north of plaintiff's land. The number of connections with said sewer system has been continually increasing since its installation, so that now there are about 550 closets connected therewith, in addition to the sewer of the State Industrial School for Boys. Prior to the construction of the sewer, the waters of Fox river were reasonably clear, suitable for bathing and for the watering of stock. As the volume of sewage increased, defilement of these waters began to be apparent, so that beginning some five or six years before the commencement of the suit they became offensive to the smell, and from them arose an extremely disagreeable odor or stench, which, whenever the wind was westerly, and especially in warm weather and stagnant conditions of atmosphere, pervaded the plaintiff's residence, causing great distress and discomfort, and in some cases illness. The waters were further rendered unfit for bathing or for watering stock. It appeared that the flow of water in the river is only about double the amount of sewage water flowing into it; that shortly below the mouth of the sewer were what are described as “pockets,” or deep places in the river, into which a large percentage of the sewage solids are accustomed to settle and remain during the process of decomposition. It also appeared that the volume of water flowing through the stream is tending to decrease from year to year, and that the use of the sewerage system is upon the increase. Plaintiff was the owner of the farm at the time the construction of the sewer was commenced, but is not shown to have had any knowledge of the details of that system, or where it was to empty, nor of the probable effect upon the waters of the stream. It was also made to appear that at an expense of some $5,000 there could be installed septic beds or tanks whereby the sewage could be purified and rendered innoxious and inoffensive. The present suit was brought to abate and enjoin the maintenance of this sewer as a nuisance, and to recover damages caused to the plaintiff's premises thereby, it being alleged that they were greatly deteriorated in sale value. The trial court, after finding facts substantially as above recited, and that until December 1, 1901, is a reasonable time to allow the defendant city to change its sewage system and provide for the doing away with the nuisance to the plaintiff, declared its conclusion of law “that the defendant should be restrained from continuing such nuisance, and from further emptying or depositing its sewage into said Fox river in such a condition and manner as to create the nuisance to the plaintiff, and that said injunction take effect December 1, A. D. 1901,” whereupon an interlocutory judgment was entered restraining the city “from discharging its sewage through its sewer system into the Fox river at any time after the 1st day of December, A. D. 1901,” and further directing that the question of plaintiff's damages be determined by a jury trial at the next regular term of court. From such interlocutory judgment this appeal is brought.

H. J. Frame, City Atty. (Ryan & Merton, of counsel), for appellant.

Armin & Waile, for respondent.

DODGE, J. (after stating the facts).

The findings and evidence disclose a very obvious nuisance, which, if created and maintained by an individual, would entitle the plaintiff to the aid of a court of equity to effect its abatement, and to damages if pecuniary injury be established, within the decisions of this court which are cited and summarized in Middlestadt v. Potato Co., 93 Wis. 1, 4, 66 N. W. 713. Two entirely well recognized elements of special and private injury are established, namely, substantial defilement of the waters of a stream flowing along and over plaintiff's land so as to prevent the beneficial use of the water, and so as to injure and impair the use of the land itself; also the creation of noisome and noxious odors interfering with the comfort, convenience, and probably the health of plaintiff and her family in the occupation of her habitation. These injuries to the plaintiff in the use of her property and to the property itself are none the less special and private because by the same acts may be created and maintained a public nuisance in defiling the waters of a navigable stream, or in polluting the atmosphere to the detriment of the public health. It has been declared by this court in Harper v. City of Milwaukee, 30 Wis. 365, 372, that “the general rule of law is that a municipal corporation has no more right to erect and maintain a nuisance than a private individual possesses, and an action may be maintained against such corporation for injuries occasioned by a nuisance for which it is responsible in any case in which, under like circumstances, an action could be maintained against an individual.” Again, in Hughes v. City of Fond du Lac, 73 Wis. 380, 383, 41 N. W. 407, 408, it is said, “A municipal corporation is no more exempt from liability in case it creates a nuisance, either public or private, than an individual.” These statements are very broad, and, appellant insists, must yield to various exceptions and limitations. Certain decisions elsewhere are urged upon our attention, notably Coal Co. v. Sanderson, 113 Pa. 126, 6 Atl. 453, and City of Valparaiso v. Hagen, 153 Ind. 337, 54 N. E. 1062, 48 L. R. A. 707. The logic of the line of decisions illustrated by the latter case may be summarized as follows: The collection and disposal of sewage is for the public safety. Cities therein are performing a governmental function for the general public, not a merely corporate power. The use of streams for such public purpose is within the right of the state government. No constitutional obstacle exists unless private property is actually taken. Impairment of use of running water or of the atmosphere is mere indirect and consequential damage, and does not amount to a taking of any property. The general authority to municipalities to construct sewer systems is a direct legislative authority to use the natural drainage courses, since in no other manner can the outflow be dismissed. Hence, no liability being expressly imposed, none results from the use of the water courses for such purpose, in absence of negligence. Some of the propositions in this chain of reasoning have received apparent approval in our own decisions. It has been said that garbage and sewage disposal is the performance of a governmental function for the general public (Kuehn v. City of Milwaukee, 92 Wis. 263, 65 N. W. 1030); also that more limited rules of liability apply in the exercise of such function than of more distinctively municipal or corporate powers (Kuehn v. City of Milwaukee, supra; Folk v. Same [Wis.] 84 N. W. 420); that mere consequential injury is not a taking of property within the constitutional prohibition (Alexander v. City of Milwaukee, 16 Wis. 247;Colclough v. Same, 92 Wis. 182, 186, 65 N. W. 1039); that the state for certain public purposes has absolute dominance over navigable streams, without liability to...