Camp v. Village of Barre

TYLER, J. The court below found that in January, 1887, the defendant became a corporation by virtue of an act of the Legislature passed at the session of 1886. The act, among other things, authorized the defendant to make by-laws for the regulation of sewers. June 2, 1892, the bailiffs notified the plaintiff to disconnect his house dram from the surface sewer before July 8, and on the latter day they again notified him to disconnect, saying that complaint had been made that the sewage from his house had become a nuisance, and that upon examination they were satisfied that it was such and dangerous to the health of the inhabitants. The bailiffs at the same time directed him to connect his drain with the village sewer, or in some other manner abate the nuisance. [568] The latter sewer had been constructed in the year 1889, was a closed sewer and designed for the reception of the general sewage of the inhabitants along the street. The bailiffs found that noxious smells came from the surface sewer and adjudged that the public good demanded that the discharge into it by the inhabitants along its line should be discontinued, and they thereupon caused disconnections to be made of all the sewers and drains that were discharging into it. They disconnected the plaintiff’s drain by moving his receiver nearer the street; The discharge from the plaintiff’s set bowl tended in some degree to generate the noxious smells that existed, “but that discharge alone, without others along the line, would not have generated such smells.” The plaintiff might have connected with the street sewer at small expense. The plaintiff’s contention is that by the arrangement made in 1887 and his payment towards the construction of his drain and receiver he had acquired a property right in the street and a right to the u^e of his drain and receiver, and that the defendant was bound to maintain them for the purposes for which they were constructed, or make compensation to him in damages. The surface sewer was the exclusive property of the defendant, constructed at its expense, without contribution from the plaintiff. The bailiffs clearly had a right to discontinue its use. Their only interference with the plaintiff’s drain, in which he had a property right, was to require him to disconnect from the old sewer and connect with the new one. The arrangement between the plaintiff and the bailiffs conveyed to the former no property rights. It was at most a license to connect with the sewer then in use, and from the nature of the case was subject to revocation whenever the defendant should establish a new sewer in accordance with the provisions of its charter and by-laws. [569] The act of incorporation, section 9, gave the defendant authority to make by-laws relating to sewers and also relating to “nuisances generally.” The by-laws, art. 5, sec. 3, provide that the bailiffs may cause the removal of nuisances and direct the draining of streets. It is said in 1 Dill., Mu. Cor., s. 374, that it is to secure and promote the public health, safety and convenience that municipal corporations are so generally and so liberally endowed with power to prevent and abate nuisances ; that this authority and its summary exercise may be constitutionally conferred on the incorporated place, and it authorizes its council to act against that which comes within the legal notion of a nuisauce. It would be anomalous to hold that the bailiffs, by permitting the plaintiff to connect his drain with one sewer, should thereby preclude themselves from disconnecting it when its use became a nuisance. ■ The defendant could not thus limit its power and defeat one of the purposes for which it was chartered. If the nuisance was the result of several persons connecting their drains with the surface sewer, the action of the bailiffs was justifiable. Any person who contributes to the production of a nuisance may be made chargeable with the injury he inflicts, although many others contributed thereto, and his -act alone would not constitute a nuisance, but the combined effect of which is to create an actionable injury. Wood, s. 831. Judgment affirmed. Thompson, J., did not sit, being engaged in county court.