
    LIABILITY FOR POLLUTION OF A STREAM.
    Common Pleas Court of Montgomery County.
    Clarence W. Neibel et al v. The Board of County Commissioners.
    
    Decided March 19, 1923.
    
      County Commissioners — Not Liable for a Nuisance Due to the Effluent from a City Sewer of Which a County Sewer Forms a Branch.
    
    The building by county commissioners of a sewer for territory outside municipal limits, which connects with a city sewer becoming a branch thereof, creates no liability against said commissioners because of a nuisance resulting at the mouth of the city sewer.
    
      
       This decision was rendered in connection with a more extended opinion construing the county sewer district law of Ohio, General Code, Sections 6602-1 et seq.
      
    
   SNEDIKER,. J.

After the testimony was concluded in this case, an application was made by counsel for plaintiffs for leave to open up the hearing and introduce evidence with'respect to an alleged pollution of the water in the'Miami River at and below the point of discharge of the sewer of the city of Dayton. This application was made on the theory that since those provisions of the Code under which this district was established recite that:

“Any board of county commissioners may acquire, construct, maintain, and operate such main, branch, intercepting or local sewer or sewers within any such sewer district, and such outlet sewer or sewers and sewage treatment or disposal works within or without such sewer district, as may be necessary to care for and conduct the sewage or surface water from any or all parts of such sewer district to a proper outlet so as to properly treat or dispose of the same.”

therefore the defendants, the county commissioners, are answerable to the plaintiffs for the condition of the river at the point in question, and if such condition is a menace to the public health or welfare it may be enjoined in this action.

It may be well at this point to call attention to the fact that the city of Dayton is not a defendant in this case. The allegations of the petition make no specific reference to a condition such as the evidence proposed is intended to establish. The complaint is:

“That if such project is completed these plaintiffs will suffer great and irreparable damage, i. e., that they will be compelled to dispose of their land on account of the great expense in the construction of such proposed improvement -and the maintenance thereof; that if a sewer is needed for the health and welfare of the public, or the drainage of the ground platted in the vicinity of the land owned by the plaintiffs, the said sewer could be located so as to take care of drainage for the said plaits and the health and welfare of the public and at such location as to place the assessment lipón the lands which will be benefitted thereby; that the lands of said plaintiffs are now properly drained and need not, for the purposes of drainage, public convenience, public health and welfare, have a sewer constructed therein upon their property or upon the public highways abutting the same.”

The allegation is made that the construction and location of the sewer as proposed:

“Is not necessary for the purpose of drainage, public convenience, public health and welfare; that the said defendants have failed to come within the provision of said Section 6602-1 to 6602-16 in that the improvement at or near the location contemplated is not necessary'for the purpose of drainage, public convenience, public health and welfare; nor have the defendants herein complied with said Sections of the General Code in the regulations, legislation, and resolutions passed thereby, and the proceedings, resolutions, contracts, and legislation passed and acted upon by the county commissioners for said improvement are illegal, irregular, and void for the reason that they have failed to comply with the said sections of the General Code of Ohio as aforesaid.”

It is under this last quoted allegation that it is sought to introduce the proof in question. It may be said generally that it is not only the privilege of the county commissioners to establish a proper outlet for the sewer of the Oakwood Heights District, but that it is also their duty. The purpose of constructing such a sewer is defined in the language of the act itself to be “of preserving and promoting the public health and welfare.”

As we remember the testimony already offered, by an agreement with the city of Dayton, the main line of the sewer of the Oakwood Heights district was joined to the sewer of the city of Dayton at about the intersection of Irving Avenue and the D. L. & C. railroad, and thus an outlet was made for the district. The city sewer was not thereby, either then or thereafter acquired, maintained or operated by the county commissioners, but it was servient to the district sewer. If Section 6602-10 and Section 6602-11 are applicable to this agreement, then there can be no question but that “full control and management” of the sewage treatment is in the municipality. Section 6602-10 provides:

“That the board of county commissioners of any county in this state or the council of any city or village may enter into a contract, upon such terms and conditions, and for such a period of time, as may be mutually agreed upon, with any other county, city or village, to prepare all necessary plans and estimates of cost, to connect any sewer or sewers of such county, city or village, with any sewer or sewers constructed, or to be constructed, by any other county, city or village, and to provide for the joint use by such contracting parties of such sewer or sewers and of any sewage treatment or disposal works of such county, city or village.”

Section 6602-11 provides:

“All such contracts shall provide for payment, to the county, city or village owning, constructing, or about to construct a sewer, sewers, or sewage treatment or disposal works, to be so jointly used, of the amount agreed upon, by the county, city or village so contracting for the joint use thereof; provided, however, that any such county, city or village, owning, constructing, or agreeing to construct any such sewer improvement or sewage treatment works, as provided herein, and permitting the use thereof by such other county, city or village, shall retain full control and management of the construction, maintenance, repair and operation of such sewer improvement and sewage treatment ór disposal works. * * * ”

If we may not construe these sections as pertinent to the arrangement made, yet we are unable to determine that the control of the sewer of the city of Dayton is in any sense in the county commissioners. The law in this respect is:

“A sewer being once completed, it is the imperative municipal duty to see that it is properly cared for, and for failure to perform this function the municipality may become liable in damages.”

Over the sewer of the district the county commissioners are by law given control. Over the sewer of the city of Dayton the municipal authorities are given control. The control of each is exclusive as to the respective localities under their supervision.

The county commissioners in the exercise of the duties of their office have only such powers as are expressly conferred by statute or necessarily to be implied therefrom, and we have nothing in the law of Ohio which, under conditions of this character, would give them power to control the sewage system of the municipality, or imply such power. The city of Dayton can not be said to be the agent of the county of Montgomery in this behalf. The county is a subdivision of the state; the city is an agency of the state. The delegated powers of the city do not permit it to become an agent of the subdivision; nor is there any authority in the subdivision to employ such an agent as a municipality.

Does the fact that the district connects with the sewer of the city of Dayton, which is under municipal control, make the county liable for the nuisance with respect to which this testimony is proposed?

In the case of Carmichael et al v. City of Texarkana, Ark. et al, 116 Fed. Rep., page 848, Judge Sanborn in deciding a sewer case, discusses the question which we have just put.

This case was in the Circuit Court of the United States for the Western District of Arkansas, and in order to fully over the point we quote somewhat at length:

“The liability of a municipal corporation to an injunction and to damages at the suit of any party who suffers continuing legal injury from the unsafe, unskillful, or careless construction and operation of a local improvement, which it has the authority to make and to operate in a proper manner, is conclusively established in the careful and exhaustive opinion of the circuit court in this case, and that liability is not questioned in this court. Carmichael v. City of Texarkana (C. C.) 94 Fed. 561, 572; Seifert v. City of Brooklyn, 101 N. Y., 136, 143; 4 N. E. 321; 54 Am. Rep. 664. The general rule that persons who either by their joint or by their several acts or omissions creat or maintain a nuisance, such as the obstruction of a way or the pollution of a stream, are jointly and severally liable for such damages as are the direct and probable consequences of the nuisance is conceded. Simmons v. Everson, 124 N. Y., 319, 323; 26 N. E., 911; 21 Am. St. Rep. 676; Thorpe v. Brumfitt, 8 Ch. App. 656; Blair v. Deakin, 57 Law T. (N.S.) 522; Irvine v. Wood, 51 N. Y., 224; 10 Am. Rep. 603; Rogers v. Stewart, 5 Fd. 215; 26 Am. Dec. 296.
“Counsel for .appellants rely upon this proposition but its applicability to the facts of this case is not perceived.” * * * “The city has constructed and is operating one of its main sewers so unskillfully and negligently that it conducts the sewage, which the demurrants have the undoubted' right to pour into ity under the statutes and under their implied contract with the city that the latter will lead away this sewage without injury to others, into the brook above the complainants’ property, to their serious injury. But the demurrants had no control over the manner of this construction. They have no right to change the sewer, no direction of its operation, and, since they have no control over its construction, operation, or repair, they can not be liable jointly with the city for the wrongful acts of which it alone was guilty, and which it alone had the power to do or to refrain from doing. The power of control is the test of liability. If one has no power to command or direct another in the performance of an act charged, he can not be liable for the manner in which it.is done, either alone or jointly with the actor. Brady v. Railway Co. (C. C. A.), 114 Fed. 10, 107; Atwood v. Railway Co. (C. C. 72 Fed. 447, 454, 455.”

The same position is taken in the case of Farrand v. Hallas Land & Building Company, 2nd Queen’s Bench Division, p. 135. In deciding this case the court says:

“It appears to me that, if the sewer be vested in the local authority, and the defendants have the saction of that authority for doing what they have done, this action is not maintainable, for, if it were, every householder, whose house is drained into a sewer which is vested in and is under the control of a local authority, would be liable to be proceeded against for what that authority might do with the sewage which flowed out of the mouth of the sewage, although the hoouseholder was unable to direct how and in what way that, sewage was to be dealt with. It is immaterial who originally constructed the sewer; when once the sewer has Vested in the local authority they are the persons liable for any injury caused by the effluent from the sewer, and not the persons who drain into the sewer.”

So that since the sewer of the city of Dayton is under its control, and its method of disposal is under its control, no liability for the results of its manner of action falls on the county because the district at its outlet is connected with the city sewer; and if there does not, then no cause of action arises in favor of these plaintiffs either as taxpayers of the county or as residents of Van Buren township or of the state of Ohio, either in injunction or for damages against the county, and any joinder of the defendants with the city would be demurrable. The evidence may not therefore be received.  