Board of Health v. Copcutt

The first cause of action against the defendant,, stated in the complaint of the board of health, was for a violation of the sanitary code of the city of Yonkers, adopted in 1881, and the recovery of a penalty imposed for such violation.

The defendant, seeking a reversal of the judgment rendered against him for such penalty, contends that the sanitary code was not proved because not shown to have been subscribed by the secretary of the board of health. The original draft of the code which was before the board for adoption, and upon which that body acted, was not produced and could not be produced, because it was destroyed by the printers in the process of publication; but the plaintiff did produce the proofs of such publication filed in the office of the board, and those proofs contain a complete copy of the code as adopted and published. That copy purports to be signed by the secretary of the board, and was attested by such signature as published. There was no proof that the original was not signed, but it was shown that the sanitary code as published was correctly printed in a volume produced, at the end of which appeared the words: “ Adopted by the board of health, September 5th, 1881. W. H. Doty, secretary.” On this state of facts the court found that “the plaintiff, on .the 5th day of September,

The appellant further suggests the inquiry whether the board of health can maintain an action for the penalty upon a general enactment against all public nuisances, such as is section 82 of the Code. That section provides that “ whatever is dangerous to human life or to health * * * and whatever renders the air or food and water or drink unwholesome shall be deemed to be nuisances and to be illegal, and every person having aided in creating or contributing to the same, or who may support, continue or retain any of them shall be deemed guilty of a violation of this section.” The manner of enforcing the provision is dictated by section 97, which imposes a penalty for its violation, which may be recovered with costs “ in an action brought by said board of health in its name in any court of competent jurisdiction.” The charter of the city (Chap. 184, Laws of 1881, title 9, § 2), authorized the board to enact a sanitary code, and impose penalties for its violation, and to maintain actions -for the recovery of such penalties. In addition the charter gave to the board of health of the city “ all the powers now or hereafter conferred upon boards of health in cities by any general law.” Such a general law was enacted afterwards (Laws of 1885, chap. 270), which authorized the imposition of penalties for the violation of or non-compliance with not only the orders of such a board, but also its regulations, and to maintain actions to collect such penalties. The learned counsel for the appellant maintains that the city of Yonkers was excepted from the operation of the general law. That is true so far as it relates to the composition of the board and appointment of its members (§ 1), but is not true, as to the general powers conferred upon the boards of health when organized. (§ 3.) At that point the excepted cities are named, but Yonkers is not one of them.

There is nothing in the defendant’s plea of the Statute of Limitations. He maintained the nuisance and neglected and refused to abate it down to the time of the destruction of his dam, and this action was commenced a few days later. It is said, however, that the complaint does not allege, and the proof does not show, that the dam and pond in and of themselves had become a nuisance, and so their maintenance down to the time of the commencement of the action does not answer the plea of the statute. The complaint alleges that the defendant maintained the dam and pond in such a condi tion as to be dangerous to human health, and to render the air and water unwholesome, and continues to support and retain the same in that condition. The trial judge found that the waters of the pond are stagnant and filled with decomposed and decomposing animal and vegetable matters; that when the waters are drawn down' and the sides and bed of the pond are left exposed and bare, there arise noxious and poisonous exhalations which taint the air and are dangerous to life and health; and that “ the said pond with its contents so retained by the said dam is and constitutes a public nuisance detrimental to the public health.” There is evidence to support this finding, even irrespective of the filth contributed by others than, the defendant; proof that the stagnant water, and, when drawn off, the exposure of the sides and bed of the stream, tend to produce vile and malarious exhalations, and these are intensified by the accumulation of filth which no police vigilance could keep out of the stream, and which the dams retained and held. I deem it impossible upon the proof and the findings to exempt the maintenance of the pond and dam from the charge of being a public nuisance.

We come now to the third cause of action, the second having been defeated by the General Term and the plaintiff having submitted to the decision by omitting to appeal from it. That third cause of action was to recover a penalty for a violation of the ordinance of the board of health, passed December

The first is quite narrow and technical. It is in substance that the board had no power to declare in advance that a future construction would be a nuisance. It is apparent that the facts do not raise that question by itself so far as the action for the penalty is concerned, because the board had many times declared a dam and pond in the river at that point to be a nuisance, and the court has so found as a fact. So far as defendant had put obstructions in the stream he had created a nuisance, less in degree than the old dam, but of the same character and effect. He was ordered to remove such obstructions, and refused, and that fact alone will sustain the judgment for the penalty. But beyond that, I think the board had power to prevent a re-construction and a re-instatement of what it had declared to be, and what the court has found in fact was, a public nuisance. The question, however, may conveniently be reserved until we reach the argument made against the injunction which was granted.

The appellant also objects that the ordinance which was directed against him specially and affected his property rights,

We come now to the final point of the appellant’s argument, which is a contention that no injunction should have been granted, and that the one allowed should be set aside.

In a large class of cases the writ of injunction is a preventive remedy. It issues often and promptly where the defendant threatens or is about to do some act of such a character that no legal action can furnish adequate redress. It implies the danger of a future injury, and very frequently has been used to check and prevent an apprehended nuisance. Even where a statute provided specially for the removal of a nuisance, the People were not compelled to await its completion, but were awarded an injunction to restrain the further erection, and compel the removal so far as erected. (People v. Vanderbilt, 24 How. Pr. 301 ; 26 N. Y. 287 .) Beyond the general jurisdiction, we have in this case the fact that both by the charter of the city of Yonkers and the provisions of the General Health Act, the boards may avail themselves of the remedy by injunction. In that fact is necessarily involved the power of such boards to prevent the erection and creation

The appellant, however, further argues that this is not a case in which it is reasonable or just to grant the remedy, and his contention is in substance, that when he built the dam the stream was clean and the water pure; that he never did anything to pollute it or make it dangerous to health; that it came into that condition from the acts of others, made possible by the negligence of the city authorities; and that his property is destroyed and he is forbidden to restore it without any fault of his own. But the court below has found as a fact that he. did participate in creating the actual condition of things which menaced the public health, and there is evidence tending to show that he erected and maintained closets which emptied into the stream. That finding furnishes one answer to his plea of absolute innocence. But this dam and pond were his.1 He had a right and it was his duty to keep them clean and safe, or dispense with them entirely if he could not. His dam was a pocket to catch and hold all filth thrown in above. He well knew it and could not sit still and suffer his own property to become an intolerable nuisance and say it was not his fault. When pestilence is forcing a way into our harbors, and danger and death approach through all rot and filth, it is the condition with which boards of health must grapple, and the condition which must be abated or removed, without regard to the question who caused the trouble. Thus in Wenzlick v. McCotter (87 H. T. 127), it was said by Danforth, J., as to the position of an owner of land upon which a third party should wrongfully enter and erect a nuisance, that “ in such a case the owner would not be liable either for the erection of the nuisance or its continuance until he was requested to abate it. * * * As if the defendant simply suffer a dam, erected upon his land by a former owner, to remain, without being used by him, it is no continuance of

The judgment should be affirmed, with costs.

All concur.

Judgment affirmed.