Oklahoma City v. West , 155 Okla. 63 ( 1931 )

In the opinion in this case it was carefully pointed out that we were considering only a nuisance caused by the discharge of unpurified sewage into a watercourse, and we took judicial notice of the fact that sewage can be easily and successfully purified by modern methods. Having so concluded, we held it to naturally follow that the nuisance was to be held temporary, for it could be abated by the expenditure of money or labor.

We refused to follow the contention that we should look backwards to ascertain why it was that the sewage was not sufficiently purified to prevent the nuisance, and held that the nuisance was a wrong and that it was wholly unnecessary to allege negligence as a condition of recovery for the nuisance, or to avoid holding the nuisance to be permanent.

In the petition for rehearing the defendant endeavors to convince us that the statutes of this state have authorized the discharge of unpurified sewage into watercourses, and to add to the weight of the argument they have copied short extracts in the brief upon the petition for rehearing from cases in which such a nuisance was said to be a taking of property. In the opinion in the case we mentioned the fact that such expressions were used in some of the cases, but we said that such expressions were beside the point, because an authority to construct sewers did not, nor did authority to turn sewage into a watercourse, authorize the commission of a nuisance. It is common in these cases to not only contend that there is authority to commit the nuisance, but also that certain results are consequential and that there can be no recovery at all for such effects. It is usual to refute that contention by referring to the result as a taking to show that even if the result was authorized, yet there would be liability, and the court then goes on and specifically holds that the result was not within the authority, thereby leaving the result a nuisance, a common-law tort, something beyond any authority conferred.

We would naturally expect the defendant to select from the cases using such expressions those cases, if any, that would refute our conclusion. Let us examine the cases cited upon that point in the brief upon the petition for rehearing.

One case referring to the conduct as a taking was Kewanee v. Otley (Ill.) 68 N.E. 388. There the court held the nuisance to be a wrong and enjoined its continuance, and it specifically classed the nuisance as continuing or temporary.

In Chicago G. W. Ry. Co. v. First Methodist Church, 102 Fed. 85, another case cited by the defendant, the court said:

"* * * There is no difference in principle between an actual physical invasion of one's property and the creation and maintenance of a nuisance which has the effect to deprive him of his beneficial use."

The court also said:

"If it does not desire to make compensation for the nuisance thus created, it must remove it."

And it cited with approval Baltimore P. R. Co. v. Fifth Baptist Church, 108 U.S. 317, 2 Sup. Ct. 719, 27 L.Ed. 739, in which the Supreme Court of the United States said that if the defendant could not abate the nuisance by alterations, it could and should move. And we find that in a later action between the railroad and the Fifth Baptist Church,137 U.S. 568, 34 L. Ed. 784, the court held the nuisance upon the second action to be a continuing or temporary nuisance. In both Supreme Court decisions it was held that injunctive relief would be proper. And in Chicago G. W. Ry. Co. v. First Methodist Church, the court specifically held that what was being done that caused the nuisance was something beyond the authority conferred by the legislation which the defendant claimed was its justification.

In Mansfield v. Balliett, 65 Ohio St. 451, 63 N.E. 86, a case of pollution by sewage, cited in the brief on the petition for rehearing, the court cited with approval from authorities holding the nuisance to be a wrong, and it affirmed a judgment for the plaintiff rendered over a plea of former recovery in a prior action.

In Sammons v. Gloversville, 70 N.Y. Supp. 284, another sewage pollution case cited by the defendant, the court granted an injunction until such time as the defendant might obtain legislation permitting the nuisance or should abate it. The court did not say just what legislation would be necessary to permit the commission of the nuisance, and on that point it is clear that mere authority to construct sewers, or authority to turn sewage into a watercourse, does not authorize the commission of the nuisance. What does appear from the case that is interesting is that although the nuisance was referred to as a taking of property, its continuance was enjoined as a wrong.

The defendant also cited another case, Winn v. Rutland,52 Vt. 481. That was an action for alleged negligence. The court stated that the authority was required to be so exercised as not to damage others.

The only other case cited was McLaughlin v. City of Hope (Ark.) 155 S.W. 910, which seems to be in point, and which was one of the cases cited in the opinion in Mangum v. Sun Set Field, 73 Okla. 11, 174 P. 501, but if it was intended to go beyond what the Arkansas court in later cases understood its scope to be, then the later cases repudiate it, for the later cases enjoined the nuisance. In McLaughlin v. City of Hope, supra, the court said that since the conduct of the city in taking possession of the property and polluting the watercourse manifested an intention to do so permanently, damages should be assessed upon the theory of a permanent nuisance.

In Jones v. Sewer Improvement Dist. No. 3 of City of Rogers (Ark.) 177 S.W. 888, the court said:

"The measure of damages to a riparian owner from the use of a stream as an outlet for sewage is the difference in value of the land before and after the stream was so used. This rule was laid down in McLaughlin v. City of Hope, supra, and City of El Dorado v. Scruggs, supra.

"In the circuit court the plaintiffs were allowed to recover damages according to this rule, that is to say, they were entitled to and allowed to recover damages for the land taken and damaged by the construction of the sewer. The damages allowed in such cases are those which result from a proper construction of a sewer. According to the allegations of the complaint, after the sewer was constructed, it was maintained in such a way as to constitute a nuisance. The right to construct sewers and drains implies no right to create a nuisance, public or private. It is the duty of the commissioners of the sewer district to construct the sewer so that it will not become a nuisance to any neighborhood or to any particular inhabitant thereof; and it is the duty of the city, after the sewer has been turned over to it, to avoid the same result by properly maintaining and repairing the sewer after it is constructed. * * *

"The right conferred upon the sewer commissioners to construct the sewer system and to obtain an outlet therefor outside the city limits carried with it the power to condemn lands necessary for the outlet and for the construction of the septic tank and filter beds."

The court directed that the city be again made a party to the action and that an injunction be issued against it and the sewer commissioners. The court repudiated a plea of the statute of limitations, holding that the nuisance was temporary.

And in Sewerage District v. Black (Ark.) 217 S.W. 813, the court said:

"The appellees, in the opinion of the majority of this court, by a preponderance of the evidence have proved that a nuisance was created. It was not incumbent upon appellees to make this proof by showing the manner in which the sewerage system was constructed, or the methods by which it was maintained. Appellees have met the burden of proof when they show by a preponderance of the evidence the existence of a nuisance, and that the proximate cause of such nuisance was the sewerage system which appellants had constructed and were maintaining.

"The appellants undertook to overcome this testimony on behalf of the appellees by testimony to the effect that the sewerage system had been constructed and was being maintained according to the most up-to-date and approved methods, and thatas thus constructed and maintained a nuisance would not becreated. It was within the province of the appellants to produce such testimony. Therefore the issue as to whether a nuisance was infact created and continued to exist at the time of the institution of this action was one depending upon the credibility of the witnesses and the weight to be given their testimony. It did not devolve upon appellees to point out to appellants the defects in construction or maintenance that caused the nuisance. Having proved the existence of the nuisance and that the appellants caused the same, the matter of correction and abatement thereof must rest on the appellants."

An injunction was granted.

That is a most interesting line of authorities, considered as offered to sustain a contention that the creation of a nuisance by pollution of a watercourse is authorized and is, therefore, to be considered a permanent course of conduct. All of them hold the nuisance to be wrong; wherever an injunction was sought it was granted; and wherever there was interposed a plea of former recovery or a plea of the statute of limitations, it was denied expressly upon the theory that the nuisance was temporary.

The only exception was the case of McLaughlin v. City of Hope, supra, and whatever may have been in the mind of the court in that case, the later decisions limit the permanency to a taking for outlet, right of way or filter beds, deny the right to cause a nuisance, hold the nuisance to be temporary, and deny the necessity of alleging or proving more than the existence of a nuisance, leaving investigation as to the cause and consideration of the manner of abatement to the defendant.

Winchell v. City of Waukesha (Wis.) 85 N.W. 669, should interest counsel for the defendants. It cites a long list of American authorities denying the right to create such a nuisance. In the opinion the court said:

"This view of the legislative purpose is enforced by the consideration that, although liquid sewage must flow off along the general drainage courses of the vicinity, it is by no means physically necessary that it should carry with the solids in an offensive or unhygienic condition. Hackstack v. Improvement Co., 66 Wis. 439, 29 N.W. 240. It is matter of common knowledge, and of proof in this case, that there are practicable methods for the decomposition and practical destruction of such solids before delivering them into open watercourses; the most modern method, as explained in the evidence here, being treatment in septic bacteria tanks, whereby the decomposition and resolution into inoffensive and innocuous fluids, gases, and mineral solids is greatly expedited. * * *

"The great weight of authority, American and English, supports the view that legislative authority to install a sewer system carries no implication of authority to create or maintain a nuisance, and that it matters not whether such nuisance results from negligence or from the plan adopted. If such nuisance is created, the same remedies may be invoked as if the perpetrator were an individual." (See cases cited.)

In that case an injunction was granted, its effective date being postponed to give the city an opportunity to abate the nuisance.

As a matter of fact, in an act passed as early as 1847, which expressly granted the right to discharge sewage into a watercourse, the Legislature itself expressly provided that it should not be so done as to create a nuisance. Attorney-General v. City of Leeds, L. R. 5 Ch. App. 583. The first sewage pollution case in Oklahoma cited and discussed this case. Markwardt v. City of Guthrie, 18 Okla. 32, 90 P. 26, at page 47.

The defendant also cites section 4404 C. O. S. 1921, enacted in 1903. That section merely authorizes the condemnation of property for the construction and repair of sewers. It certainly does not authorize the pollution of a watercourse in a manner constituting a nuisance at common law.

The defendant also cites section 8976 C. O. S. 1921, enacted in 1917, chapter 166, Session Laws of 1917, p. 266, which provides that a sewer system not then in operation shall not discharge any "sewerage" into the waters of the state without a permit, and provides that the act shall permit such discharge from sewer systems in operation prior to July 1, 1916, and defines "sewerage" as a substance containing any discharge from human bodies or animals. The act has no application. The defendant omits the provisions that follow the alleged permission. The next sentence describes the permission as"this exception," indicating that the literal permission is only an exception to requiring a permit. It also provides, even as to such systems, that when it appears that a nuisance dangerous to public health is found by the State Board of Health to exist, the board shall have authority to "make an order requiring such pollution to cease within a reasonable time, or requiring such manner of treatment or of disposition of the sewage or other polluting material as may in its judgment be necessary to prevent the further pollution of such stream, or both."

The act even provides as to system not then in operation that the permit shall be for not less than one year and not more than two years, and since a permit is required if the substance contains any discharge whatsoever from human bodies or animals, there is a clear recognition of the fact that the sewage can be absolutely purified by the total destruction of the solids and other polluting elements.

The act was one relating to the public health, and it was not intended to regulate private rights. We construe the alleged permission as merely an exception from the requirement for a permit, and a qualified exception expressly provided against a nuisance. The act has no application. It contains no permission to create a nuisance. There was no intent to legislate as to private rights. If we did construe it as intended to affect private rights, and we could see that it intended to permit the creation of a nuisance, it is manifest that the act would be unconstitutional so far as the alleged permission is concerned, for the act is entitled only as an act to preserve the purity of the waters of the state, and such a title would not permit the enactment of a permission to pollute the waters in violation of private rights.

The defendant urges this act as a legislative declaration of the intent and meaning of section 4404 C. O. S. 1921, supra, enacted in 1903. Since section 8976 contains no permission in effect but contains merely an exception to the requiring of a permit, and in no way authorizes the commission of what would be a nuisance, and was not intended to affect private rights, the section fails as a basis for the argument, and in any event a mere authority to condemn property for the construction and repair of a sewer system, as is provided by section 4404, is so limited in its provisions, and such provisions have so uniformly been construed as not permitting a nuisance, that the argument has no force.

The defendant contends that the opinion failed to consider certain controlling decisions of the court.

DuPont De Nemours Powder Co. v. Dodson, 49 Okla. 58,150 P. 1085, was an injunction suit in which the court denied that the defendant would be exempt from damages resulting from the location of a warehouse for the storage of explosives, but denied the injunction sought by the plaintiff, admitting that where the statute does not provide for a location, the location must be such as not to injure others, but holding that in that case the location had been fixed by the Legislature, for it had authorized building in such a location as the Chief Mine Inspector should certify to be a reasonably safe distance from the class of properties listed in the statute. The case has nothing to do with the matter of pollution of a watercourse, or in determining the scope of authority under a permission to construct or operate a sewer system.

Consumers Light Power Co. v. Holland, 118 Okla. 132,247 P. 50, was an action for damages caused by spray from a spray pond necessarily used for cooling water for turbine engines, the generation of electric power by turbine engines being a proper mode of operation. There was no charge of improper location of the plant. The case is no authority for holding that a nuisance resulting from what is held to be wrongful conduct should be held permanent.

Cunningham v. Ponca City, 27 Okla. 858, 113 P. 919, was an action to enjoin the city from entering upon land condemned for a sewer outlet. There was no nuisance, and the injunction was properly denied. The right to enter upon condemned land was all that was before the court for decision.

Duncan v. Stanley, 133 Okla. 245, 271 P. 422, follows Mangum v. Sun Set Field, which we overruled in the opinion in this case. Negligence was not involved, nor should the court have considered what the city had done in an attempt to stop the nuisance. The nuisance was a wrong and it was the duty of the city to abate it, and a plea of the statute of limitations on the theory that the nuisance was permanent should not have been sustained.

There is another Oklahoma case holding with the contention of the defendant, but the defendant evidently overlooked it. It is City of Ardmore v. Colbert, 52 Okla. 235, 152 P. 603, a commissioner's opinion in which the contention that the nuisance was temporary was denied and an attempt was made to distinguish Ardmore v. Orr, 35 Okla. 305, 129 P. 867, on the ground that in that case there was only an insufficient culvert. The court must not have read what followed the statement in the Orr Case that the sewer was under the railroad track. It was necessary to enlarge or install several blocks of the sewer system to abate the nuisance in the Orr Case. Also, the court in the Colbert Case, in saying that the cause was continuing, appears to have meant that the sewer system was permanent, an argument that we denied to be valid in the opinion in this case.

The last case decided by this court upon the point prior to this case was City of Collinsville v. Brickey, 115 Okla. 264,242 P. 249, in which a plea of the statute of limitations was denied on the ground that the nuisance was a continuing or temporary nuisance. The case says nothing about negligence, but the conduct is merely considered as unlawful. The conclusion is in line with the recent Arkansas cases and with Winchell v. Waukesha, supra.

We felt that our opinion was not only in accord with the best considered authorities in this jurisdiction, but also that it was in accord with the almost universal holdings in other jurisdictions, and being so fully supported in that conclusion by the authorities cited by the defendant in its own brief upon its petition for rehearing, the petition for rehearing is necessarily denied.

LESTER, C. J., CLARK, V. C. J., and RILEY, HEFNER, CULLISON, ANDREWS, McNEILL, and KORNEGAY, JJ., concur.