I dissent from the opinion of the majority of this court.
In my opinion, the Common Pleas Court erred in finding that the assessments, as amended and filed with the joint board of county commissioners, were levied according to benefits, and in approving and confirming the assessments.
It is conceded that Bad creek, at the place of origin, is about 800 feet above sea level, and its terminal at the Maumee river is about 639 feet above sea level. There is therefore a fall of about 161 feet, and most of this fall is in Fulton county where the runoff of water is very swift. This land is assessed for the improvement.
The evidence shows that practically all land assessed for this proposed improvement lying north of a line one and one-half miles north of the Henry county line now has sufficient drainage, and that the proposed improvement will not accelerate the flow or cause the water to get away any faster from this land in Fulton county than it now gets away. The drainage of this high land will not be increased by this improvement nor the land benefited in any way by the proposed improvement.
The established law of this state, applied to the facts in this case, forbids the assessment of such upper lands. As these lands are not specially benefited they can not be assessed.
However, the trial court held, and my associate *Page 186 judges, in their opinion, hold that there exist special circumstances in the case at bar which remove it from the application of the well established rule defining benefited lands and the law relating to the assessment of such lands to pay for a drainage improvement.
The theory is advanced that the high lands of Fulton county, which are assessed, will be specially benefited by the removal of silt deposited at the lower end of the improvement, which silt was in part drained into Bad creek from such assessed lands.
It is the reasoning of the majority opinion that the dominant tenement was, at some time in the distant past, a wilderness, and that as a result of the subsequent removal of trees and the normal cultivation of fields that the amount of silt drained therefrom into Bad creek was increased, and that this fact destroyed the natural servitude of the lower tenement to receive the water flowing from the higher tenement. It follows from this reasoning that in order to preserve its advantageous position the dominant tenement must forever remain in its natural state; trees must not be removed; fields must not be cultivated; and lands must not be developed or used in any way which would increase the amount of silt carried into a stream passing through the lower tenement. With this reasoning I do not agree.
There is in the record evidence that sewage is discharged into Bad creek by the village of Delta and by homes lying along the upper reaches of the stream and that this creates a nuisance and a health hazard. It is urged that the discharge of this sewage into Bad creek is not an incident of natural drainage and makes inapplicable the drainage laws as they apply to dominant and servient tenements.
If sewage and other objectionable matter is being discharged into this stream, which is polluting the stream and creating a health hazard, the injured parties *Page 187 have adequate remedies to prevent the continuance of such a condition and to recover damages therefor where injury is shown. Certainly the drainage laws can not be resorted to to remedy such a condition, and property not requiring drainage assessed for the cost thereof under the guise that the lands assessed are specially benefited by the abatement of a health hazard.
The record in this case fails to show any benefit to the upper lands in Fulton county which will result from the proposed improvement or justify levying upon said lands any part of the cost thereof.
For the reasons here set out, I am of the opinion that the judgment of the Common Pleas Court should be reversed.