City of Hutchinson v. Delano

The opinion of the court was delivered by ; Horton, C. J.: It appears from the findings of the court ■ that B. M. Delano, who complains of the city of Hutchinson and its officers and employés on account of their action in constructing a system of sewers in that city, and of permitting the sewage to empty into Cow creek, lives five miles below the city of Hutchinson; that Cow creek is a clear, running stream of water, fitted for domestic and stock purposes; .that it runs through the city of Hutchinson and the premises of the plaintiff below; that the city of Hutchinson is con [350] structing a system of sewers for 4,000 of its inhabitants, which will carry off the sewage from hotels, livery stables, private residences, etc.; that plaintiff below does not use the water of Cow creek for any other purpose than for his stock; that he has no occasion to use it for any other purpose; that he has two wells, one at his house and the other at his barn; that the emptying of the sewage into Cow creek will not endanger the lives of plaintiff below or his family, or anyone residing on his land, and will not be liable to cause any person to have disease; that Cow creek is from 25 to 50 feet wide and 1 or 2 feet deep, with sandy bottom and banks; that the fall of the creek from the mouth of the sewer to the plaintiff’s farm is 17-f feet; that no time has been fixed for the completion of the entire system of sewers, but the intention is to extend the same as the exigencies of the city may demand; that the sewage of 15,000 people of Hutchinson into Cow creek would probably injure the water of the farm of plaintiff so as to unfit it for drinking and cooking purposes and for the use of milch cows; that the sewage of the people of Hutchinson who will use the sewers now constructed and in immediate process of construction will not probably injure the water of Cow creek for either domestic or stock purposes at the farm of the plaintiff. Upon these findings, the most that can be said is that there is an apprehensive pollution or fouling of the water at some future time — possibly when sewers shall have been constructed for the whole population of Hutchinson, comprising 15,000 people. But, under the findings of the court, this is not certain, only probable. Clearly, it cannot be said that any immediate danger exists to plaintiff below from the sewage into Cow creek from Hutchinson. The findings disclose that the danger is not imminent, but is wholly contingent — in the future, if certain things are done. (Aqueduct Board v. Passaic, N. J. 1890, 20 Atl. Rep. 54; Coach Co. v. Horse-Car Co., 29 N. J. Eq. 299; Stitt v. Hilton, 31 id. 285; Delaware &c. R. Co. v. Stock Yards Co., 43 id. 605; Hagerty v. Lee, 45 id. 255; Stoudinger v. City of Newark, 28 id. 187; Merrifield v. Worces [351] ter, 110 Mass. 216; Brookline v. Mackintosh, 133 id. 215; Morgan v. City of Binghampton, 102 N. Y. 500; Dunn v. City of Austin, Tex. 1889, 11 S. W. Rep. 1125; High, Inj., § 742; Wood, Nuis., §§ 796, 797.) The order for the injunction is so doubtful in its language, that really it is of little benefit to anyone. It forbids the city from emptying its sewage into Cow creek at some time in the future, if such sewage will pollute or corrupt the waters to the injury of plaintiff. It does not forbid the emptying of the present sewage from all of the sewers constructed or now being constructed. The injunction has but little force. It is unsatisfactory in its terms. It is not definite or certain. It merely declares a proposition of equity, not shown to be applicable in this case. Upon the findings of fact, we do not think that the injunction should have been granted, and therefore the judgment of the district court will be reversed, and the cause remanded, with direction to the district court to enter judgment in favor of the defendants below and against the plaintiff. If the exigencies of Hutchinson shall demand in the future the extension or completion of its entire system of sewers, and if the sewage from all of the sewers when fully completed should foul or pollute the waters of Cow creek so as to affect in any way the rights of plaintiff below, other and different questions will then be presented. It is sufficient at this time to say, there is no pressing necessity for an injunction. The danger is contingent — not immediate and imminent. All the Justices concurring.