Dohany v. City of Birmingham

The decree entered below allows the city of Birmingham to deposit raw sewage into a watercourse on plaintiff's lands at certain periods, under certain conditions. I cannot agree that the decree should stand. On the record before us the city should be permanently enjoined from continuing a nuisance. The city, in effect, admits that under certain conditions raw sewage is discharged, through the city sewer, across plaintiff's lands. It claims the right to do so because the sewage is diluted at such times by surface water from excessive rainfall. The city's claim is thus stated in its brief: "It is the general position of appellees that the city of Birmingham has done all that can be required of it to be done and that if any pollution is cast into the little stream across the Dohany property, that it comes only at times of excessive rainfall and is harmless as to its contents, whether definable as sewage or not. * * * "That the pumping station will take care of all flowage except possibly during severe rainfalls which is all that can be required of a municipality in the handling of its sewer disposal plant and system." Mr. Corson, the city engineer, admitted that the pumping capacity was not sufficient to prevent some of the contents of this sewer from going over the *Page 39 six-inch dam constructed by defendants, into the watercourse, and across plaintiff's lands. The extent to which the city claims the right to do this was thus explained by the city engineer: "Q. Mr. Corson, do you know whether or not the city of Birmingham, one of the defendants in this case, claims the right to discharge sewage through this sewer in question into this open watercourse that carries over on to the Dohany property, whether that sewage be much or little. "A. It does not claim that right undiluted. "Q. It does then claim the right to gather sewage and discharge it through this sewer into the open watercourse that leads down on to the Dohany property, if the sewage is diluted to some extent, is that right? "A. To a considerable extent, yes, sir. "Q. What is that extent? "A. Under the present conditions — "Q. No, just answer, just what is that extent that it has got to be diluted? "A. About one part of sewage to five of water." Mr. Dance, the city director of public works, admitted that the pumping station was operated by manual switches; that sewage goes down across plaintiff's lands if the pumps are cut off, and that whenever the six-inch dam was filled the overflow went on down into plaintiff's watercourse. It was also shown that there were 30 inches of accumulated raw sewage or "sludge" at the bottom of the sewer manhole, beyond the capacity of the pumps; that this accumulation was churned up by any unusual flow of surface water and thus carried on down into plaintiff's watercourse. This accumulation is sewage and the solids in this accumulation are human excrement. *Page 40 Plaintiff acquired the lands in question in 1916, at a first cost of $12,000, since which time plaintiff has expended thereon in taxes approximately $7,000. The land is about 21 acres in extent, partly woodland, lies about six miles from the city limits of Detroit, and closely adjacent to other residential districts. It was acquired for residential purposes, and is traversed by a meandering natural watercourse, with a channel and well-defined banks. At times the watercourse is dry. It is the outlet for raw sewage discharged from the sewer in question whenever there is a heavy rainfall. The outlet of the sewer empties into a small pool from which the contents of the sewer pass across plaintiff's land from a short ditch along the highway. No part of plaintiff's land lies within the corporate limits of the city. There was no pollution of this watercourse before the sewer was constructed. As soon as the sewer was completed it began to deposit raw sewage into the watercourse. Night soil and the usual complement of raw sewage was deposited therein. The stench became terrible and plaintiff started suit in August, 1939, to abate the nuisance. In October, 1939, the city installed and put into operation a six-inch dam and pumping station at the lower end of the upper (42-inch) part of the sewer. The purpose was to divert the contents of the sewer by means of the dam and pumping station through an eight-inch pipe, and, eventually, through a disposal plant. Admittedly, this construction does not take care of all of the raw sewage. After a heavy rainfall the contents of the sewer rise above the six-inch dam and are carried on down across plaintiff's land. Some six months after the dam and pumping station were put into operation plaintiff obtained samples of the sewage discharged across his land. These samples were taken each week for a period *Page 41 of 12 consecutive weeks during the months of April, May, and June. The 12 samples were analyzed and brought into court as evidence. Three different chemists testified that these samples contained all of the usual elements of sewage, — abundant chlorides, hydrogen sulphide, active bacilli coli, ammonia and insoluble solids. At that time human excrement was still being deposited on plaintiff's land. The stench continued and was such that a nearby resident was, at times, compelled to keep the windows of his house closed. To sustain its position the city relies upon cases holding that a riparian owner is allowed reasonable use of a natural watercourse in common with other riparian owners, even to the extent of a certain amount of pollution. People v. Hulbert,131 Mich. 156 (64 L.R.A. 265, 100 Am. St. Rep. 588); Monroe CarpPond Co. v. River Raisin Paper Co., 240 Mich. 279. The rights of a riparian owner are not involved in the case at bar. No part of the natural watercourse lies within the corporate limits of the defendant city. The city is not a riparian owner. MonroeCarp Pond Co. v. River Raisin Paper Co., supra. Defendants claim their position is analogous to that of a riparian owner because surface water finds its natural outlet in plaintiff's watercourse. It does not follow that the city may make an unreasonable use of plaintiff's watercourse for disposing of raw sewage. Equity has jurisdiction to restrain the pollution of a watercourse by casting sewage therein in quantity sufficient to occasion a nuisance. No public necessity warrants a city in injuring the rights of riparian owners by polluting a stream with its sewers; such rights are protected by the Constitution and cannot be taken away except by due process of law.* AttorneyGeneral, ex rel. Township of Wyoming, *Page 42 v. City of Grand Rapids, 175 Mich. 503 (50 L.R.A. [N.S.] 473, Ann. Cas. 1915 A. 968); Gundy v. Village of Merrill,250 Mich. 416. It cannot be successfully maintained that the duty of the city to care for its sewage disposal continues only during the time of normal weather and ends when there is an excessive rainfall. Nor does plaintiff's right to have the nuisance abated depend upon the use of water from the natural watercourse for drinking or domestic purposes. The value of plaintiff's land is materially lessened when sewage is discharged across his land with the attendant bad odors and the visible evidence of human excrement. The decree entered below holds that the dam and pumping station, installed by the city since the suit was started, is adequate to take care of the dry weather flowage from the combined storm water and sanitary sewer, and that the city is not required to prevent the surplus flow from finding an outlet, at other times, across plaintiff's property. This is not sufficient. A decree may be entered allowing the city a reasonable length of time to make the necessary improvements and permanently enjoining defendants from thereafter discharging raw sewage into the watercourse on or across plaintiff's land, with costs to plaintiff. NORTH, STARR, WIEST, BUTZEL, BUSHNELL, and SHARPE, JJ., concurred with BOYLES, J. * See Const. 1908, Art. 2, § 16. — REPORTER. *Page 43