Sammons v. City of Gloversville — 81 A.D. 332

Majority

p. 332

Willard S. Sammons, Appellant, v. The City of Gloversville, Respondent.

Headnote

Injunction—defiling, a creek nine miles above the premises of an owner seeking an injunction—form of injunction granted,.

An owner of lands located upon a natural creek, nine miles below a city which empties sewage and street washings into the creek, thereby rendering such stream unfit for such owner’s uses as a riparian owner and materially damaging him, is entitled to an injunction restraining such action on the part of the city.

The injunction granted in such a case should be to the same effect and contain the same provisions as the injunction granted in the case'of Sammons v. City if Gloversville (34 Mise. Rep. 459; affd., 67 App. Div. 628 ).

p. 333

Appeal by the plaintiff,. Willard S. Sammons, from so much of a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Fulton on the 7th day of November, 1902, upon the decision of the court, rendered after a trial before the court without a jury at the Fulton Trial Term, as denies the plaintiff’s motion for an injunction.

The plaintiff, who is an owner of lands about nine miles below the city of Gloversville, through which the Cayadutta creek, a large natural stream, flows, has brought this action against such city to restrain it from polluting that stream by emptying its sewers in it and for damages.

The trial court has found that ever since 1890 the defendant has, by means of its system of sewers and drains, collected in artificial channels and wrongfully and unlawfully discharged into such creek above the lands of the plaintiff a large quantity of sewage and filth, thereby polluting the waters and also the bed and the bank of said creek, rendering them offensive to the senses and occasioning deposits in the bed and along the banks thereof and upon plaintiff’s land, rendering such waters less useful for farming, dairying and manufacturing purposes and for the maintenance of cattle and other animals and for the harvesting of merchantable ice, to the nuisance of the plaintiff and his land; that, the defendant thereafter enlarged its system of sewers so that the amount of pollution discharged from them into such creek at the time of the trial amounted to 1,200,000 gallons per day of domestic sewage beside the washings of streets through eighty catch basins; that such wrongful acts of the defendant have continued for more than six years prior to the commencement of the action; that the defendant is a growing city; that it has from time to time during said six years enlarged its system of sewers and increased the quantity of its sewage discharged into said creek and is continually increasing said nuisance to the lands of the plaintiff; that the defendant threatens to continue said nuisance and does not abate the same, and will, unless restrained by the court, continue said nuisance permanently and the plaintiff will be compelled from time to time to bring actions against the city to recover his damages from time to time suffered by the trespass so committed and continued.

The court also found the amount of damages the plaintiff had

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suffered for the six years prior to the commencement of the action and from that time down to the time of the trial and awarded him a judgment therefor, but denied him . an injunction on account of the distance of his lands from the city of Gloversville. Because of this denial the plaintiff has appealed.

Andrew J. Nellis and M. D. Murray, for the appellant.

William A. McDonald, for the respondent.

It having been found by the court that the defendant is maintaining a nuisance to the 'plaintiff by polluting the stream flowing through his land with its sewage, rendering such stream unfit for Ilia uses as a riparian owner and materially damaging him; that such nuisance is continually increasing, and will be continued permanently unless restrained by the court and that unless so restrained a multiplicity of suits will ensue, a clear case is made for equitable relief and an injunction should have been granted regardless Of the distance of plaintiff’s land from the city. (Butler v. Village of White Plains, 59 App. Div. 30 ; Strobel v. Kerr Salt Co., 164 N. Y. 321 ; Hooker v. City of Rochester, 126 id. 635; Chapman v. City of Rochester, 110 id. 273.)

. More than this, there appears no substantial distinction between this case and that of Sammons v. City of Gloversville ( 34 Misc. Rep. 459 ), recently affirmed in this court without opinion ( 67 App. Div. 628 ), and we feel bound to follow that decision.

The judgment in so far as it denies an injunction should be reversed, with costs to the appellant-, and an injunction granted to the same effect’and containing the same provisions as in the case last mentioned.

All concurred.

Judgment, so far as it denies injunction, reversed, with costs to appellant, and injunction granted as per opinion.

Cases cited

Butler v. Village of White Plains 59 App. Div. 30 N.Y. App. Div. 1901-03-08 p. 334
Sammons v. City of Gloversville 34 Misc. Rep. 459 N.Y. Sup. Ct. p. 334