This action was commenced by the plaintiff in January, 1919, to recover damages for the alleged pollution by the defendant of the waters in Heart river. The case was tried to a jury, and resulted in a general verdict in favor of the plaintiff in tbe sum of $9,852.98. Judgment was entered pursuant to the verdict. Defendant moved for judgment notwithstanding the verdict or for a new trial. The trial court ordered judgment in favor of the defendant notwithstanding the verdict. Judgment was so entered, and the plaintiff appealed.
This litigation, or rather another phase thereof, was before this court in a former action. McDonough v. Russell-Miller Mill. Co. 38 N. D. 465, 165 N. W. 504. Both parties are riparian owners upon the Heart river within the limits of the city of Dickinson. The plaintiff owns a tract of land traversed by the Heart river. The tract originally consisted of 160 acres. Later plaintiff platted a portion of it, on both sides of the river, as a.n addition to the city of Dickinson, and sold some of it, *239for residence lots. Of the remainder, 40 acres are under cultivation, and about 80 acres in pasture. The plaintiff also used to maintain an ice house, which is situated on the bank of the river on this land. Immediately below plaintiff’s land is a concrete dam constructed by the Northern Pacific Kailroad Company about 1908 or 1909. This dam is situated about 2,060 feet below plaintiff’s ice house, and he cut ice from the pond formed above the dam.
The defendant owns a tract of land up stream from plaintiff’s premises. In 1910 the defendant constructed a large flour mill upon said tract of land. The drainage from the mill led into the river at a point 6,350 feet above plaintiff’s ice house. The plaintiff claimed that this drainage polluted the waters of the Heart river. And in June, 1914, he brought an action against the defendant, wherein he claimed that this drainage polluted the waters of the Heart river, and caused them to become “absolutely unfit for any use in connection with any human or animal food or drink, and rendered all ice cut on said pond unfit and dangerous for use to which ice is commonly used, and valueless and unsalable, thereby destroying utterly the value and profitableness of said ice business” (38 N. D. 471), and asked that he be awarded damages in the sum of $40,600 for: (1) The loss of profits of value or the ice cutting privilege; (2) the expense incurred'one winter in cutting off about five inches from the bottom of the cakes of ice- when such bottom part was filled with black specks; (3) the loss of the use of tbe land for pasturage purposes; and (4) the additional expense for cutting and hauling ice a distance of about two miles during the winter of 1913 — 14; and that defendant be enjoined from continuing the acts which it was asserted caused the pollution of the stream. 38 N. D. 474. A trial of that action resulted in a judgment in favor of the plaintiff for $100, allowed as and for nominal damages, and denial of the injunctive relief prayed for. That judgment was affirmed by this court. 38 N. D. 465. The drainage from the mill, complained of in that case, consisted of certain water wherein wheat had been washed, and the discharge of a certain water-closet used by the employees of the mill. 38 N. D. 471. . Upon the trial of that action it was shown that the defendant was constructing a septic tank; that the latest and most approved scientific apparatus and appliances for purification were utilized in such construction; that the same would completely deodoriz,e *240and destroy all bacteria and germs; that a large force of men was then at work on such construction; and that the tank would be fully completed and in use within ten days or two weeks from that_time. And in the findings of fact, signed several months later, the trial court found that the defendant had “installed a septic tank at its said mill and elevator, and that since that time it has not discharged, and is not now discharging, into the Heart river, any sewage from its said mill and elevator.” 38 N. D. 482. The defendant pleaded the judgment in the former action as a bar in this action, and the judgment roll and the transcript of the evidence in that action was offered and received in evidence in this case, and the court was requested to take judicial notice of the decision of this court in the former action.
In this action plaintiff seeks to recover damages for pollution, alleged to have taken place since the trial of the former action. It is contended that the septic tank did not do the work it was supposed to do, and that sewage was discharged into the river; that the defendant put manure on its dam, and repaired breaks therein by filling in manure; that oil and grease was discharged into the water, and that refuse, sweepings and waste matter from the mill were dumped into the river, and were placed upon the banks of the river so that they found their way into the river. As a result thereof plaintiff claims that, since the trial of the former action and up to the commencement of this action, he was damaged, and entitled to judgment, as follows: “$7,500 for the pollution of the ice field; $3,000 reduced rental of pasture; $2,000 damages for interfering with the enjoyment of his dwelling and premises by reason of the bad odors; $5,000 damages for preventing the sale of said lands; $5,000 exemplary damages.” No evidence whatever was offered as to the loss of sale of the premises. And at the close of the testimony the trial court announced that in his judgment there was no room for the allowance of exemplary damages. There was submitted to the jury for determination whether, and to what extent, plaintiff had been damaged: (1) By the pollution of his ice field so that he could not cut ice himself or sell-or lease the ice cutting privilege to others; (2) lessened rental value of his pasture; and (3) interference with the use and' enjoyment of his dwelling house by reason of bad odors. In answer to special interrogatories the jury found that the value of the untilled land for pasturage purposes was $800 per year, and that its *241value for haying purposes was $300 per year; that plaintiff has sustained damages in the sum of $1,602.98 on account of the bad odors which prevented his full enjoyment of the dwelling house. The verdict returned in favor of the plaintiff was for $9,852.98.
We are entirely satisfied that the verdict cannot stand, and that the trial court was correct in so far as he held that the plaintiff could not recover any damages for the alleged damages occasioned by pollution of the ice field. The plaintiff testified that in the course of the years he had taken this ice and sold it to the people of Dickinson and vicinity; and that the ice cutting privilege during the years involved in this action was worth from $1,500 to $2,000 per year. Tet the evidence shows that prior to the time involved in this action, the city of Dickinson enacted an ordinance prohibiting the cutting of ice on Heart river at any point within the limits of the city of Dickinson. That ordinance was in effect before the first action was brought. It was considered, and ils provisions referred to, in our decision in that case. See, 38 N. D. 478. That action was tried anew in this court. There was no difference of opinion among its members as to either the facts or,the law. The ordinance by its terms, (a) “prohibited the cutting of ice from that portion of the Heart river within the city limits, east of the mill-dam,” and, (b) “required all persons desirous of cutting and packing ice for sale or distribution within the city of Dickinson to apply to the local board of health, and receive its approval as to the sanitary condition of such ice.” 38 N. D. 475; In that action the plaintiff contended that the ordinance had been “adopted because the city authorities had determined that the drainage from the mill polluted the waters in the Heart river and rendered the ice therein unfit for human use. In support of this contention plaintiff called Dr. Davis and one Babe, two members of the local board of health, who testified in regard to the reasons for the action of the city officials.” 38 N. D. 478.
In disposing of that contention this court said:
“It is a rule of construction universally adopted, that courts are not concerned with the wisdom of legislative policy or the motive or necessity for legislative acts, except in so far as these may furnish some aid in ascertaining the intent of the legislative body in case the language of an enactment is ambiguous or doubtful. It surely cannot be con*242tended that a party who is injured by the enactment of a prohibitory or regulatory measure by a' legislative body is entitled to recover damages against the person or persons whose conduct was responsible for or created the public sentiment or necessity which led to the enactment of the measures. Nor does it seem that the reasons which actuate a legislative body in enacting a measure can be deemed to have any particular probative force in a controversy between private parties and involving private rights, even though the reasons for the enactment are recited in the measure itself. It is for the legislative body to determine what the'law shall be, and for the courts to determine what it is. It is solely for the legislative body to determine whether the facts, existing or prospective, require certain legislation to be enacted. The courts are not concerned with whether the reasons which actuated the legislative body to adopt a law were wise or unwise, or whether the promises on which legislative, judgment was exercised were correct or incorrect. These are matters to be determined solely by the legislative body itself, and may be considered by the court only to ascertain the legislative intent in case the enactment is couched in language of ambiguous or doubtful meaning. Sedgwick (Sedgw. Stat. & Const. Law, pp. 56, 57), in discussing what weight and effect should be given to facts recited by a lawmaking body in the preamble of an enactment, says: ‘As between individuals whose rights are affected, the facts recited ought not to be evidence. We well know that such applications are made frequently ex parte. Once adopt the principle that such facts are conclusive, or even prima facie evidence against private rights, and many individual controversies may be prejudged and drawn from the sanctions of the judiciary into the vortex of legislative usurpation. The appropriate functions of the legislature are to make laws to operate on future incidents, and not a decision or forestalling of rights accrued or vested under previous laws. Such a preamble is evidence that the facts were so represented to the legislature, and not that they are really true.’
“Even if the enactment of the ordinance could be considered, how-' ever, it is difficult to see wherein it would strengthen plaintiff’s cause. It seems rather far-fetched to say that the ordinance was passed because defendant polluted the water in the stream.' If the city authorities deemed that the discharge of drainage from defendant’s mill tended to pollute waters in the stream so as to render them dangerous *243to public health, it seems as though the logical thing for them to have done under the circumstances would have been to prevent such pollution, rather than to permit the pollution to continue and prohibit the cutting of ice.
“The evidence in this case, however, shows that there were other sources of possible pollution below the mill dam which of themselves furnished adequate reason for the adoption of the ordinance in question. For instance it is shown that South Dickinson lies between the milldam and plaintiff’s premises. That- there are in all three or four hundred German, Russian, Bohemian, and Polish families living here. There are no sewers, and the houses have privies, and there are also barns situated on the bank of the river. The land slopes toward the. river. The surface drainage from this town, as well as the seepage from the privies, discharge into the river. Cattle and horses pastured on plaintiff’s premises, and the town herd containing some 80 to 100 head of cows, are permitted to wade into the river. There are piles of manure along its banks. There is a brickyard which drains into the river.
“Professor Snyder in his testimony gave a graphic description of these sources of pollution.
“lie testified in part as follows:
“ £Q. Now, what was the first source of contamination which you discovered below the mill ?
“ £A. At the brickyard there is a cut through which the clay material is brought to the brickyard, affording a natural drainage for a large portion of the brickyard area, and there is also situated on this gully an open privy the drainage of which leads down a channel into the river. That was the first one.
“ £Q. You don’t know how many men are employed in that brickyard ?
“ £A. I don’t . . . but I would judge from the size of the works there would be a large number. .
“ £Q. Going on down the stream what else did you discover ?
“ £A. Buildings located near the bank, barns, the natural drainage directly into the river, also privies of buildings further down; also located a small flour mill a little off, but where the drainage would find its way into the river. Also general conditions such as was described by the doctor (Dr. Davis) this morning.’
*244“This testimony was corroborated by Professor Hulbert, who testified to other sources of pollution observed by him, including piles of manure and the carcass of a horse. -
“Dr. Davis, the local health officer who apparently was largely responsible for the enactment of the ordinance, admits that these other possible sources of pollution would have justified the enactment of the ordinance.
“On his cross-examination Dr. Davis testified in part:
“ ‘Q. Assuming that his (plaintiff’s) ice house is below the pond where the surface drainage from all of South Dickinson enters the Heart river, wouldn’t you say that that situation alone would be sufficient grounds to pass the ordinance there?
“ A. I certainly would. . . .
“ ‘Q. So that, entirely independent of the Russell Mill Company’s sewerage, there was another distinct ground upon which you would have been justified in passing that regulation?
“ A. I think so.’ ”
There is no contention here, nor was there any contention in the former action, that the ordinance, for any reason, is invalid. Nor is there any contention that it has been repealed or altered. On the contrary all reference to it during the course of the trial implied that it was in full force and effect. An ordinance of a city is a rule of conduct within its corporate limits, and every person is as much bound to obey and observe a law laid down by the city council as one laid down-by the legislature. Dorrame v. Omaha & C. B. Street R. Co. 105 Neb. 196, 180 N. W. 90; Memphis Steel R. Co. v. Haynes, 112 Tenn. 712, 81 S. W. 374. Hence, we have the situation that the plaintiff seeks, and was awarded, damages because he was prevented from doing, or it became unprofitable for him to do something which was forbidden by law. Manifestly he could recover no damages because he was prevented from violating, or because it became unprofitable for him to violate, the law.
There is some evidence tending to show pollution of the waters in Heart river by the defendant by placing manure on top of its milldam ;■ by using manure to fill breaks in such dam; by dumping refuse into the river, and by sewage going into the river at a time when the septic tank was out of order. While as to some of these things the evidence is *245not strong, we believe there is sufficient evidence to make it a question for the jury whether there was or was not pollution by the defendant. A majority of the members of the court are, also, of the opinion that the evidence is sufficient to sustain a verdict in favor of the plaintiff for damages by reason of lessened rental value of his premises for pasturage purposes, and, also, for the interference with the enjoyment by plaintiff of his dwelling. The members of the court, who join in this opinion, however, are agreed that as to the former there is no way to determine upon the record here what the jury allowed therefor in their verdict in this case. The plaintiff testified that the pasture was sufficient for twenty head of stock, and that he could have charged and recived 25 cents per day for each head; that the stock could be pastured ten months a year; that at the time of the trial he was pasturing some eight or nine head therein (for which he was receiving such sum), as well as some of his own horses; that if not pastured the land would produce, and there could bo cut thereon, on the average about one-half tons of hay per acre; that hay was selling at $31- or $35 per ton; that for the purposes of cutting hay thereon the land would rent for about $200 per year. With respect to the interffcrence with plaintiff’s enjoyment of his dwelling, the evidence shows that the dwelling is situated about three city blocks from the pond formed above the dam; that a short distance below the dam there is emptied into the river, at a point about two and a half city blocks from plaintiff’s dwelling, the sewage of the city of Dickinson; that while.the greater part of the sewage of such city was treated in a septic tank, a portion thereof was raw sewage; that complaint had been made by certain residents of the city on account of the stench caused by the city sewer. The plaintiff, however, testified that the city sewer caused him no annoyance, but that the annoyance was caused by the stench from the waters above the dam. While there is evidence tending to show other sources of pollution, a majority of the members of the court are not willing to say as a matter of law that the plaintiff may not upon another trial establish that some or all of the injuries which he claims to have sustained as regards the lessoned rental value of his pasture, and the interference with his dwellings, are not chargeable directly to the acts of the defendant. Hence, the judgment is reversed, and the case is remanded for a new trial.
*246Upon- the oral argument it was suggested by defendant’s counsel that he had been informed that plaintiff had died interim the taking of tho appeal and the oral argument. Later defendant filed a motion to dismiss the appeal on this ground. We do not believe that under our statutes the action abated by the death of the plaintiff. Comp. Laws 1913, §§ 5446,' 7408. See also § 8800, Comp. Laws 1913.
Reversed and remanded for further proceedings.
Robinson, Oh. J. and Christianson and Birdzell, JJ., concur.