Dohany v. City of Birmingham

We have most carefully reviewed the evidence as disclosed by the record before us for the purpose of determining whether the findings of fact by the trial judge find support therein, and from said examination we reach the conclusion that said findings of fact are amply supported by the record here. We are also in accord with the conclusions of law reached by the lower court and conclude, therefore, that the decree entered on such findings and conclusions should not be disturbed.

Entertaining these views, we have determined to adopt the findings and conclusions of the trial court as conclusive of the questions involved on this appeal.

The opinion of the trial court follows:

"The plaintiff is the owner of acreage traversed by a small watercourse that lies in close proximity to the city of Birmingham. A portion of the city now partially developed, serviced by a sanitary sewer here complained of, found natural surface water drainage in the watercourse. Plaintiff's complaint of pollution resulted in the defendant city installing a mechanically operated pumping device to divert all the dry weather flowage from the watercourse to a sanitary lateral, finding other source of outlet. The pumping device and source of outlet are insufficient to take care of the content of the combined sanitary and storm water flowage at periods of great precipitation incident to heavy rainfalls. On such occasions the surplus finds outlet in the watercourse.

"The defendant city alleges thereby a condition is not created injurious to public health, a nuisance is not established, there is no resultant damage, and pollution, if any, is insignificant and inconsequential.

"The plaintiff, on the other hand, contends that the pumping device has not on all occasions taken care of the dry weather flowage and in addition the city has no right of pollution at any time and that he is entitled to injunctive relief preventing the discharge of any waters showing evidence of contamination.

"The drain and mechanism installed by the city are in accord with `accepted engineering practices,' capable of a load up to 900 gallons per minute, ample to accommodate the `dry weather flow' for an area containing a population of 2,000 and upwards, far in excess of present necessity.

"The defendant city has a right to make a reasonable use of the stream. This principle is expressed in Attorney General, ex rel.Township of Wyoming, v. City of Grand Rapids, 175 Mich. 503 (50 L.R.A. [N.S.] 473, Ann. Cas. 1915 A, 968), quoting from page 534, `Undoubtedly the city has the right to make a reasonable use of the waters of the river as a riparian owner.' The legal determination that confronts us in this case is whether or not the permission of the passage of the surplus waters at the time of great precipitation over the lands of the plaintiff which may to some extent, in diluted content, carry pollution, presents unreasonable use.

"The Court, in a case that went to the extreme in condemning a city for the pollution of the waters of a stream, stated that the matter of reasonable use is a question of fact and further it is incumbent upon him who claims an unreasonable use to make it appear. Penn American Plate Glass Co. v. Schwinn,177 Ind. 645, 657 (98 N.E. 715, 719), and other cases cited.

"The Supreme Court of this State, in Phillips v. Village ofArmada, 155 Mich. 260, at pp. 262, 263, announces `The use of a stream reasonable at one time and one place may become unreasonable at another time and at another place. The reasonable use of a stream must be determined in the light of increased population, of proper sanitary measures and the general welfare of the communities affected. The sewerage of villages and cities has become an absolute necessity for public health. It is not enough to condemn a use as unreasonable because such a use may pollute to some extent the waters of the stream below. Its use by the upper riparian owners may be such as to render it unfit for domestic purposes by man and yet such use may be reasonable.'

"The principle enunciated in Gundy v. Village of Merrill,250 Mich. 416, that a village has no right to deposit sewerage in an open ditch in any manner that will cause a nuisance and that a prescriptive right cannot be established to maintain a public nuisance and that an injunction will issue to abate any nuisance so caused is not in conflict with the failure to grant injunctive relief against the deposit of surplus waters at the time of heavy rainfalls in the stream crossing the lands of the plaintiff, nor is the principle afforded by granting injunctive relief in the case of Attorney General, ex rel. Township of Wyoming, v. Cityof Grand Rapids, supra, against the deposit of sewerage in a river to the extent of creating a public nuisance, here violated.

"Factually, no damage has been established through the circumstance of the permission of the flow of surplus waters as here outlined, nor has public nuisance been proven. This court is satisfied that the certain circumstances complained of bore relationships to a time prior to the establishment and present workability of the mechanism now used, that the samples obtained by the plaintiff were from a pool where the most unfavorable condition would be reflected and one that would not be free from influences outside of present established devices for the purpose of preventing dry weather flowage from entering the watercourse over plaintiff's lands.

"Defendant certainly is chargeable with a duty less than permanently maintaining a flowage of water in the stream that has the purity essential for drinking purposes. Plaintiff makes no use of the water and therefore has no right of action for disturbance of content from this standpoint. The stream is no more than a ditch, dry most of the time. Defendant city offered evidence that samples analyzed by it presented a state of oxidization taking place affording no injurious circumstances.

"The plaintiff will be denied injunctive relief for the purpose of preventing the surplus flow of water in excess of the dry weather flowage from finding outlet in the stream. The decree may, however, provide that the city shall at all times be required to take care of the dry weather flowage and provide necessary pumping facilities adequate for any increased demand due to an increased population in the area so that the stream crossing plaintiff's land will only be burdened with such excess and surplus flow incident to heavy precipitation through rainfalls.

"The findings in this case cover the present factual situation and are not to be construed to cover should a circumstance develop from causes here unforeseen, that might result in recognized health authorities finding a circumstance amounting to a public nuisance or a condition injurious to public health.

"A decree may enter without costs."

We find that the decree, a portion of which we quote, protects plaintiff from being unduly burdened by any increase in the amount of flowage from the sewer in question due to any increased demand following any increase in the population in the area served by said sewer.

Those portions of the decree, which we deem important here, we quote:

I "That the defendants, particularly the defendant city of Birmingham, has installed in Coolidge highway, so-called, a pumping station sufficient to take care of dry weather flowage of storm water and combined sanitary and storm water flowage to the extent of all dry weather flowage from the area drained by the combined sanitary and storm sewer located in Coolidge highway so-called.

II "That the defendant, particularly defendant city of Birmingham, shall not be required to prevent the surplus flow of water in excess of the dry weather flowage from finding outlet in the stream crossing the plaintiff's property. The defendants, particularly defendant city of Birmingham, shall be required to take care of the dry weather flowage and provide necessary pumping facilities adequate for any increased demand due to an increased population in the area within the corporate limits of the said defendant city of Birmingham, so that the stream crossing plaintiff's land will only be burdened with such excess and surplus flow incident to heavy precipitation through rainfalls, and the defendant city of Birmingham has the right to have any overflow at such periods drained southerly on Coolidge highway from the pumping station at Maple and Coolidge highway, and that neither plaintiff nor his property are damaged on account thereof and because of the fact that a certain amount of such excess flowage is cast into the watercourse crossing plaintiff's land.

III "That the court finds the excess of storm water and sanitary flowage cast into the drain southerly from Maple avenue and occasionally into the watercourse across plaintiff's land has not done and does not do any damage to either plaintiff or plaintiff's land, and that the same has not created and does not create any nuisance and is not injurious to public health, nor does the same constitute any nuisance.

IV "That the pumping station now located at the intersection of Maple avenue and Coolidge highway was constructed and is constructed according to accepted engineering practices, and is amply sufficient to take care of all the dry weather flow from the area drained by said combined storm and sanitary sewer in Coolidge highway, and originally drained by the watercourse which crosses plaintiff's land.

V "That the Court finds that any pollution cast upon plaintiff's land during periods of great precipitation incident to rainfalls was not and is not of sufficient magnitude to do any damage whatsoever to plaintiff and his property.

VI "That all injunctive relief prayed for in the bill of complaint be and the same is hereby denied and to the extent of the injunctive relief prayed for in said bill of complaint, said bill of complaint is considered the same as though said bill of complaint were by the opinion and this decree dismissed.

VII "That the findings in this case covered the present factual situation and are not to be construed to cover circumstances which may develop from causes here unforeseen, which may result in recognized health authorities finding a circumstance amounting to a public nuisance and should such a circumstance arise in the future, application may be made for further relief within this cause."

It is the duty of this court, which hears chancery cases denovo, to weigh all the evidence, and to reach a conclusion in accordance with the just rights of the parties after a review of the entire record. Petz v. Gaines, 286 Mich. 450; Hawthorne v. Dunn, 210 Mich. 176. With this rule in mind, we have carefully reviewed not only the evidence as disclosed by the record but also the able briefs filed by counsel for the respective parties, and we are persuaded that the decree entered herein is in accordance with the just rights of the parties.

The findings of fact by the trial court are well supported by competent evidence, and the conclusions of law reached by said court are in accord with the following authorities: Fox v.Holcomb, 32 Mich. 494; Upjohn v. Board of Health of Richmond Township, 46 Mich. 542 (41 Am. Rep. 178); People v. Hulbert, 131 Mich. 156 (64 L.R.A. 265, 100 Am. St. Rep. 588); Phillips v. Village ofArmada, supra; Smith v. Barrett, 159 Mich. 325; AttorneyGeneral, ex rel. Wyoming Township, v. City of Grand Rapids,supra; Village of Sand Lake v. Allen, 185 Mich. 1.

The decree should be affirmed with costs.