McKee v. City of Grand Rapids

100 N.W. 580, 137 Mich. 200, 1904 Mich. LEXIS 538

Opinion

Grant, J.

(after stating the facts). The issues in this case are those of fact, rather than law. Counsel for complainants in their brief say:

“We assert that the city of Grand Rapids created and maintained this nuisance by emptying sewage at first directly into this channel, and afterwards by negligently permitting it to flow through the sluiceway into the channel; and also by the improper dumping of garbage and filth along the bank of the channel. We also complain of its action in filling and causing or permitting to be filled in portions of the east channel, including the turning basin. If the defendant did not thus cause and create this nuisance, then complainants have no cause of action., and there is no necessity to discuss any abstract questions of law.”

A, sluice from the steamboat channel to river.

B, Oak street fill of 1896.

O, O, sheds and restaurant.

D, filled turning basin.

E, the old dock torn away six or seven years ago.

F, P, P, part of the houses and closets on the bank.

H, few feet of dock of McKee’s north of Wealthy avenue.

I, I, draws in railroad bridge and Wealthy avenue approved by the United States government. Crossing of channel at Wealthy avenue shows fill authorized by United States gov» ernment.

There are some issues of fact upon which the evidence is in conflict. Upon others there is a substantial agreement.

1. There were originally five islands in Grand river below the rapids. Islands numbered 1, 2, and 5 were above Island No. 3. Island No. 5 was called by the surveyors “Low Willow Isle.” Their location can be seen upon a map found in the opinion in case of Butler v. Railroad Co., 85 Mich., at page 252 (48 N. W. 569, 24 Am. St. Rep. 84). There was one well-defined natural channel east of these islands. About 31 or 32. years ago this channel between Islands Nos. 1 and 2 and the east bank of the river was filled with earth by the owners of the islands and the lands on the east bank. This filling completely closed that channel of the river, and a considerable portion of the business part of the city of Grand Rapids is built upon this land so made, and upon these islands. This, of course* prevented the flowage of water through the channel. For this the city was in no wise responsible. All remedy* either at law or in equity, for such action, is now barred by the statute of limitations and by laches. This action on the part of the property holders left no flowage of water from the main channel of the river into what is known as the “ eastern channel,” except that which flowed between Islands Nos. 3 and 5. There was little current between them except in cases of high water.

' The court below found that this eastern channel had for more than 30 years been a nuisance. To this nuisance various parties contributed, as hereinafter stated. The action of the elements has also contributed to it by rains and floods, which washed the refuse deposited upon the surface of the lands adjoining into the channel. The fact, also, that the river is lower now in the summer than it was 25 or 30 years ago is another element increasing the nuisance.

In 1871 private parties interested in the use of the eastern channel. as a waterway for commerce dredged the channel, and also dredged out a basin at the head of. Island No. 3, so that boats coming up the channel could turn around. In constructing this basin the earth was excavated and thrown out, and an embankment made across the head of the channel. A small sluiceway, consisting of an iron pipe, was put in under the embankment for the purpose of admitting the water from above. The closing of the channel between Islands Nos. 1 and 2 and the main land and the erection of this embankment across the channel at the head of Island No. 3 substantially shut off all the current that would naturally flow from the main river into this channel. The'water in the channel below naturally became stagnant. Complaints were made of noxious odors, and from that time, as appears by the records and proceedings of the common council, it has been a constant source of discussion, and various efforts have been made to abate the nuisance, which proved abortive. Various parties naturally made this channel a dumping ground, even against the orders and instructions of the city, and against notices posted along the channel banks.

Upon the complainants’ property and other adjoining lands are situated some dwelling houses, in the rear of which, and near the bank of the channel, are water-closets or privies, which consist of a hole in the ground and boards upon the outside, with large cracks between. In times of high water some of these privies stand in the water. All agree that the general reputation of the neighborhood is bad. Garbage and slops were thrown out upon the ground, which would be washed into the channel by the rains. The seepage and flowage from these closets contributed to the nuisance. The boats which were used in the channel also were daily depositing offensive material.

The complainants desired, and the board of health advised, the construction of a sluice, instead of this small one, which was of little or no use; and in 1878 the city constructed such sluice. It did not carry water at the low ■stages of the summer in sufficient quantities to remedy the evil. Much of the time it carried little, if any, water. It is claimed that the sewage from the sewer pipes above flowed down through this sluice into the channel, and contributed to the nuisance. We agree with the ■finding of the circuit judge that there was not sufficient offensive material which came through this sluice from the sewers to cause the nuisance. Other cities ■and villages above the defendant city also emptied their sewage into the river, and there is good reason for the testimony of one witness, who stated that there was no longer pure water in the river during the low stages. The sewers were emptied into the river at the usual distance from the hank. Finally, in order to remedy the evil, some of the sewers were carried out near the center of the river. Originally, some of the sewers emptied into the eastern channel, but this was some years ago, and there is no xeason to believe that this contributes now to the nuisance. The floods in the spring and fall flushed this channel out sufficiently to carry with it all offensive matter. The "trouble evidently is in the low stages of water in the summer, when stagnant water becomes unhealthful without the addition of offensive matter.

The city is not responsible for closing the channel between Islands Nos. 1 and 2 and the main land; neither is it responsible for the embankment at the head of the basin, which cut off all the current there was between Islands Nos. 3 and 5. We find no substantial foundation for the claim that the city has created the nuisance. If these complainants or their grantors desired to prevent these obstructions to the natural flow of water, they should have proceeded against those who caused them. Their remedy is now barred by the statute of limitations and by laches, mo'matter whether these obstructions were made by priwate parties or by the city.

We think the evidence fails to sustain the complainants’ -allegation that the city has deposited upon Island No. 3 garbage which contributed in any appreciable amount to-the impurities of the water of the channel. The city constructed an incinerator, where it burns all its refuse which can be burned. The more offensive, which cannot well be-burned, is taken to the foot of the island, and dumped into-the main channel. If any offensive matter has occasionally been dumped into the channel, it has been against the-express orders of the city. The city cannot be held liable for this entire nuisance, even if on a few occasions one of its employés has violated its instructions.

2. As against the city the complainants are not now entitled to the gracious writ of injunction to compel the city to undo what it has done. The purchase of the island,, the intention to connect it with the main land and to close up the sluiceway, and the progress of all these important and extensive improvements were known to the complainants. They contented themselves with a mere protest at some stage of the proceedings. Two courses were then, open to them: (1) To file a bill in equity to enjoin the work on the ground that it would increase the nuisance already existing, and cause them irreparable damages;, (2) to wait'until the work was done, and bring an action, at law for damage. They waited. Equity will not now lend its aid to a party to compel an expensive work to be undone which the party might, by planting a bill in equity in reasonable season, have prevented. 16 Am. & Eng. Enc. Law (2d Ed.), pp. 356,357; Traphagen v. Mayor, etc., of Jersey City, 29 N. J. Eq. 206; City of Logansport v. Uhl, 99 Ind. 531 (50 Am. Rep. 109); Griffin v. Railroad, 70 Ga. 164; 1 Spelling on Injunc. and Other Ext. Rem. § 26; Edwards v. Mining Co., 38 Mich. 46 (31 Am. Rep. 301). See, also, Clifton Iron Co. v. Dye, 87 Ala. 468 (6 South. 192).

A mere protest under such circumstances will not open the door of equity to parties who thus delay in seeking its-aid. 16 Am. & Eng. Enc. Law (2d Ed.), p. 357; Easton v. Railroad Co., 24 N. J. Eq. 50; Kerr on Injunc. (4th Ed.)p. 138. When these complainants chose to content themselves with the simple protest, and then to stand by in .silence, and see these extensive and valuable improvements progress, they estopped themselves to any remedy by injunction.

3. Another reason why the relief sought cannot be .granted is that it is, under the evidence in this case, wholly impracticable. An engineer, one of the complainants’ •witnesses, testified that, to he effectual, the channel into the'river should be as wide as the eastern channel, and as •deep as the bed of the river. Another testified that pure water could only be obtained by running the channel into •or near the middle of the main river. Whether sufficient water at low stages in the summer, when it is most needed, ■could be obtained, may be questionable. If it could what •effect would such a channel have upon the volume of water in the river ? To be effective, it must necessarily divert from the river more water than naturally ran through the -original channel between Islands Nos. 3 and 5. The restoration of the sluice, or even the original channel, or .their equivalent, would not abate the nuisance. It is not at all certain that the diversion of the volume of water necessary to abate the nuisance would not result in injury to the inhabitants on the west side. Has the city, or have the inhabitants on the east side, the right to divert the water to the injury of those upon the west side, even though the water so diverted would abate a nuisance to the health of the city upon the east side ? This question must be answered in the .negative; especially when, as therein shown, there is another sure and practicable way to .abate the nuisance, and one which will not only cause no ■damage to the landowners, but will increase the value of their lands. All that the complainants, in any event, would be entitled to as against the city, would be the restoration of the volume and current of water equal to that which ran through the original sluice between Islands Nos. .3 and 5; and as against all would be entitled only to that which originally ran through the original channel between those islands. The question of abating the nuisance as a menace to the public health is not now before us for discussion. Complainants, as a part of the general public, cannot maintain a suit upon that ground. Only when the nuisance causes special damage to a private person, separate and apart from that done to the public, can he maintain a suit to abate it. The city is not responsible for the embankment made in 1871, and cannot be compelled to remove it. The city did not thereby stop the flow of.' water. It cannot, therefore, be compelled to restore it. It can only be compelled, in any event, to restore what it-took away. As the complainants desired, and as the-board of health advised, the city undertook to increase the flow of water, not for the benefit of the defendant, but for the benefit of the public health. The experiment made in good faith by the advice of those upon whom the city had. a right to rely proved a failure, and in 1896 the city closed, it up; thereby, as is clearly established by the evidence, adding value to the complainants’ lands. Even if the city were under any obligation to restore the channel, it is now,, for the reasons above stated, impracticable and of doubtful propriety.

4. We agree with the conclusion reached by the court below that as a highway of commerce this eastern channel is now useless, and will ever remain so. There is not the remotest probability that the United States will ever dredge it out so as to make it a commercial channel, and certainly no private parties ever will, in view of the fact that the United States has now recognized the channel upon the west side of the island as the commercial channel; and if it ever improves any it will improve that. It has already recognized this channel by ordering draws in the bridges upon the west óf the island, and refusing to require them over the eastern channel. Commerce and the general public will be as well accommodated on the west side of the island as they can be upon the east, and probably better. Not only would the channel itself have-to be dredged to be useful for commercial purposes, but it would be necessary to divert the water of the river into it. in sufficient quantities to purify it. No witness has expressed a belief that this will ever be done. It follows from what has bqgn said above that the only practicable way to abate this nuisance is to fill the channel. Upon this there is also a substantial agreement of the 'witnesses. It is probably the only safe and effective way.' Complainants’ lands are already increased in value by the purchase of this island and the extensive improvements put upon it. It is unquestionable, and virtually admitted by the complainants themselves, that - the filling of the channel will increase the value of their property, and add to it land which, under the present conditions, is of virtually no value. There is evidence that one of the complainants signed a petition to have this channel filled. Another testified as follows:

“ Q. Don’t you think, under the condition this property is in down there now, and with the present policy of the government not to have any draw in the east channel, that it would be worth more with the old channel filled up ?

“ A. There is no question about it at all.

“ Q. Or that it would be worth more than it would be with any little artificial channel, such as existed at any time within the last thirty years ?

“A. If things were returned, and a pure stream of water was flowing through there, I should rather have it in that shape than the present state and have to fill the land.

‘ ‘ Q. There was no pure stream of water flowing through this little artificial sluiceway from the river, was there ?

“A. No, sir; but there should be.

“ Q. I am speaking of it as it existed for the last thirty years. Taking into consideration the little artificial sluice that was there, the land is worth more filled up, now that the government has abandoned it as a navigable stream of water ?

“ A. I answered it two or three times that if it is to stay as it is now it is worthless.

“ Q. If it stays as it was with that little channel that carried sewage into it, it is not worth much?.

“ A. No, sir.

“ Q. You have in contemplation a large channel through there that would bring pure water, such as has not existed for thirty years ?

“A. Not necessarily.

“ Q. It would have to bring pure waiter to be of value ?

“A. Yes, sir; but I don’t think it would be a very large channel.

“ Q. It would take a very different channel from any that was made by the city, wouldn’t it ?

“A. I am not an engineer. I could not say as to that.”

We have already stated whát the complainants’engineer testified to in regard to the channel. Under this state of facts the complainants’ cause is without equity. If the present condition of the channel is a menace to the public health, the law provides a remedy for its abatement. With that question we, however, now have nothing to do. It is sufficient to say that for the reasons above stated the complainants are not entitled to any relief in equity. The _ bridge, as proposed by the decree, permits the passage of all the boats which now have occasion to use the channel. The defendant not having appealed, that decree stands, and the defendant can proceed with the construction of the bridge in accordance therewith.

The decree is affirmed, with costs.

The other Justices concurred.