Morgan v. City of Danbury

Baldwin, J. The defendant complains that the injunction granted by the Superior Court goes beyond the claim for relief in the complaint, because it forbids both the dis — 493 — charge of sewage into Still River, and also the pollution of the river by any such discharge. The complaint alleged that the city was discharging waste matter, sewage, and other noxious, corrupt, and impure substances, from its sewers, so as to pollute the river, and to cause much of such discharges to be deposited on the plaintiff’s land and mill privilege; and that thereby he had been largely deprived of the use of a valuable mill and mill privilege, he and his workmen injuriously exposed to noxious odors, the air in the neighborhood corrupted and poisoned so as to endanger the health of himself and others, his mill-dam partly filled up with filth, the value of his property greatly diminished, and he disabled from disposing of his land for building purposes. It was also averred that the defendant intended greatly to increase the pollution of the river, and to cause much greater quantities of filth, poisonous and offensive matter to be deposited in the river, to his irreparable injury, and that by the acts of the defendant, unless restrained, his dam and mill-pond would be filled up with filth and sewage, and the value of his land destroyed. The relief claimed was an injunction “ against the continuance of said nuisance, and to restrain the pollution of the waters of said river temporarily and permanently.” The nuisance thus complained of consisted, then, of discharging into a river, above the plaintiff’s premises, certain substances of such a kind and in such a manner that the water came to him polluted, and a, deposit was made upon his land and in his mill-pond, whereby noxious odors were created, dangerous to his health and that of others, his dam partly filled up by filth, and the- use and value of his property largely taken away; injuries which the defendant intended to increase by enlarging its sewer system, and adding to the amount of the deposits made from the sewers in the river, the result of which would be to fill up his mill-pond with filth and sewage, and make his property valueless. These allegations were denied, but have been found true; and there is nothing inconsistent with their truth in the special finding of facts. They stated that the deposits from — 494 — the sewers- both filled up the plaintiff’s milhpond, and polluted the air he breathed and the waters that flowed over his property. These, though proceeding from the same act, produced separate injuries. A nuisance was created with a double aspect. That to the waters of the stream and the air above it, it was found, constituted a public nuisance, though it was one which also wrought a special and peculiar injury to the plaintiff. That from filling up the mill-pond constituted simply a private nuisance. Haskell v. New Bedford, 108 Mass., 208, 216; Brayton v. Fall River, 118 Mass., 218, 229. It was proper that the injunction should be so framed as to protect the plaintiff against every serious and irreparable injury which he might suffer by the continuance of the nuisance, and its terms are fully conformable to the claims stated in his complaint. The defendant contends that the decree is too broad, in that it restrains the discharge into the river of any sewage, even if not of a noxious, or polluting character, or though entirely and permanently disinfected and purified. ' The primary meaning of the term “ sewage ” is that which passes through a sewer. Century Diet.; Webster’s International Diet. A secondary meaning is derived from the usual character of the contents of a sewer, and as used in that sense the word signifies the refuse and foul matter, solid or liquid, which it so carried off. In the plaintiff’s complaint the connection in which the term is employed is such as to indicate that it was intended to carry the secondary meaning. He avers that the city is causing to flow into the river “ large quantities of acids, impure substances, waste matter, contents of privies and cesspools, sewage, and other noxious, corrupt, and impure substances, so as to render the waters of said river at said property filthy, noxious and unclean,” and that it intends to “ greatly and wrongfully increase the pollution and defilement of the waters of said river above the said property of plaintiff, by building new sewers and connecting and using them and also old sewers or conduits with divers drains, cesspools, sinks and privies, and discharging their contents into — 495 — said river, and thereby cause to be deposited much greater quantities of filth, poisonous and offensive matter, than there otherwise would be in said waters of said river, to the great and irreparable injury of plaintiff’s said property, and the increase of the poison and unwholesomeness of the air in that neighborhood.” These acts, he alleges, have already endangered his health and that of others, by the noxious and unhealthy odors arising from the impure condition of the waters of the river, and have caused his millpond to he partly filled up with filth; and will, if continued, as the city intends, cause the pond to be entirely filled up with filth and sewage. This use, in closing the enumeration of certain kinds of substances discharged into the river, of the words “ sewage, and other noxious, corrupt, and impure substances,” indicates that the sewage of which he complained was itself something noxious, corrupt, and impure; and the solid matter which thus came to be deposited upon his property he describes as “ filth.” The supplemental answer, setting up the establishment of the Woolf disinfecting plant, avers that the discharges from the sewer have thereby been rendered “ entirely harmless and free from any offensive qualities, and no solid matter is permitted to empty from said sewer into said stream, but the same is liquefied and clarified, and the plaintiff is relieved thereby of all danger in the future from the said sewer, and the condition of the said Still River below the said outfall sewer, is rendered more pure and free from offensive matter than it would be if no outfall sewer was permitted, inasmuch as the electrolized salt water used to purify and disinfect the said outfall sewer, has also a disinfecting and purifying effect on the whole stream into which said outfall sewer enters.” These allegations were denied, and the issues upon them have been found for the plaintiff. The decree must be read in the light of the issues joined. Its use of the term “ sewage ” was that which the parties had made of it in their pleadings. Under the first of its prohibitory clauses, the discharge of no sewage is enjoined which is not either, if fluid, foul and noxious, or, if solid, either foul and noxious, or such as may be a source of the deposit of filth — 496 — in the plaintiff’s pond. It is not impossible that fluids discharged from the sewer, although colorless, sterilized, and apparently innoxious, may yet be such as, by combination with other substances found in the river, to become the occasion of decomposition and consequent pollution; and the second prohibition of the decree makes proper provision for such a contingency. The defendant urges that it should not be made responsible for the acts of others, and that if its sewage is thoroughly disinfected, sterilized, and purified, before its discharge into the river, nothing further should be required, even though as it flows down the stream it may be brought into contact with other substances, in such a way as to wbrk a nuisance. But the right to deposit a thing in any place must always be dependent not only on its own nature, but on the nature of the place in question, and the uses to which that has been already put. A lighted match may be safely thrown into a brook, under ordinary circumstances, but not, should it happen to be covered with oil from a leaky tank. If different parties by several acts foul the same stream, each may be enjoined against the commission of the wrong, with which he is individually chargeable. Chipman v. Palmer, 77 N. Y., 51. It is not for the defendant to dictate the order in which the plaintiff shall sue those by whom Still River has been polluted; nor would it be in any better position, if the noxious substances placed in these waters by others were so deposited by prescriptive right. If the stream is, from whatever cause, in such a condition that to discharge its sewage there works a nuisance, the city has no right to use its waters for that purpose. It is insisted, finally, that the first clause of the order of injunction, which forbids the discharge of any solid matter from the sewers, that, though not foul and noxious, might be a source of the deposit of filth in the plaintiff’s pond, is too harsh a remedy, since for any diminution in the storage capacity of his pond he could be adequately compensated in money, while, on the other hand, this part of the decree may result in throwing a very heavy pecuniary burden upon the city. — 497 — It is a sufficient answer to this objection that the Superior Court has found that the plaintiff’s injuries are and will be such as cannot be redressed by an action for damages. That such well might be the case is quite obvious. The city had, and still has, power, by the exercise of the right of eminent domain which the legislature has confided to it for such purposes, to acquire a title, as against the plaintiff, to use the stream as it pleases. The injunction was not to take effect until nearly two years from its date. We find nothing in the record to indicate that the Superior Court did not exercise a wise judicial discretion in passing the decree. There is no error in the judgment complained of. In this opinion the other judges concurred.