
    RIGHTS OF RIPARIAN OWNERS WHO SUFFER FROM DISCHARGE OF SEWAGE INTO A RIVER BY A . MUNICIPALITY.
    Common Pleas Court of Montgomery County.
    The City of Dayton, State of Ohio, vs. Frances Sacksteder et al.
    Decided January, 1927.
    
      Abatement of Nuisance — Due to Pouring the Sewage of a City Into a Stream — Relief By Injunction. Not to Be Considered — Actions By Riparian Owners for Damages May Not Be Consolidated— Are Triable By Jury — Effect of Absence of a Prayer for General Relief — Continuance of the Nuisance and the Right to Further Damages.
    
    A number of riparian owners brought separate actions to enjoin the city of Dayton from emptying certain sewers into the Great Miami River and for damages created by reason of the nuisance thereby created. 'Later the prayer for an injunction was eliminated. The city then sought to consolidate these cases, and asked that the court retain them on the equity side, with a hearing perhaps by reference, and that jurisdiction be retained and the entire matter held in statu quo until the city com-’' pletes’ a disposal plant and the alleged nuisance is thus abated. Held:
    
    1. That with the prayer for an injunction eleminated, the cases stood as actions at law for damages.
    2. That they ought not to be consolidated or sent to a referee, but each property owner should be left to his remedy in damages to be determined by separate trials to a jury.
    
      John Harshman, City Solicitor, and Walter Snyder, Assistant City Solicitor, for plaintiff.
    
      Mattern, Brumbaugh & Mattern, John W. Kreitzer and Nathan Fulton, for defendant.
   Snediker, J.

This case is in this court on a demurrer to the petition. The proceeding is in injunction. The plaintiff asks for a restraining order against the several defendants preventing them from proceeding with the separate trials of several cases filed by them respectively, and directing them to. make up the issues in-each of these cases.-

The plaintiff further prays that all of the cases be consolidated for the purposes of trial and that the court proceed as a court of equity, either by himself or by a reference, to hear the evidence on the consolidated case, to take an account of the damages, if any, alleged to have been suffered by each of the. plaintiffs in their respective actions, and that the court retain jurisdiction of the matter until a sewage disposal plant of the plaintiff is completed and the use of the sewer outlets of the plaintiff in the river is discontinued, so that by such retention of jurisdiction all matters in controversy relating to the issues raised or which might be raised by these several plaintiffs who are defendants may be adjudicated in this case.

The cases brought by the defendants against the city are on account of an alleged nuisance resulting from the discharge of sewage from the outlets of the city sewers into the Great Miami river south of the city along which river these parties defendant claim certain riparian rights. The allegations of the petitions filed by these defendants are very much alike in all of them, the difference being in the nature and amount of the damage claimed and its duration. The prayers of these petitions are generally what is found in the case of Frances Sacksteder v. City of Dayton, No. 54029, which may be used as an example of all; and which is as follows:

“Wherefore plaintiff prays for judgment against the defendant for damages in the sum of-dollars together with six per cent, thereon from this-day of-, 1924, and that the defendant be restrained from continuing to discharge the sewage of the city of Dayton through its sewage system into the Miami river, and that on final hearing a mandatory permanent injunction be awarded by the court, and for such other and further relief as she is in law and equity entitled to.

No restraining order was allowed at the commencement of the actions or otherwise insisted upon.

After the filing of the Sacksteder petition such proceedings were had in that case that an answer was filed by the city to an amended petition and an issue was made between the parties thereby, so that the case was ready for either a hearing or a trial to a jury. And in order that the case might without question go to a jury, on November the 3d, 1925, on the application of the plaintiff the following entry was made:

“Upon application of plaintiff to amend the prayer of her petition made in open court, said plaintiff is hereby granted leave to amend the prayer of her amended petition by striking from said prayer everything appearing after ‘1924/ at the end of 'the third line of said prayer, commencing with the word ‘and’ in the fourth line thereof to the end of said prayer, to which action of the court the defendant excepts.”

This entry took from the prayer the following language:

“And that defendant be restrained from continuing to discharge the sewage of the city of Dayton and the suburban districts through this sewage system into- the Great Miami river, and that it be compelled to abate the nuisance which it had created, that on final hearing a mandatory and permanent injunction be granted by the court against such unlawful use, and for such other and further relief as she is in law and equity entitled to.”

There was still left in the prayer the following:

“Wherefore plaintiff prays for judgment against the defendant by way of damages in the sum of ten thousand dollars together with six per cent. interest thereon from the 24th day of March, 1924.”

We call attention to the fact that the prayer for general relief is withdrawn.

“If there is no prayer of general relief, then if plaintiff should mistake the relief to which he is entitled, no other relief can be granted him, unless an amendment of the prayer is allowed.” Story’s Equity Pleading.

Following this action on the part of the court at the request of the plaintiff, on November the 4th, 1925, the case which we are considering was filed, and after that the plaintiff moved the court for leave to file an amended petition in order to add certain averments with regard to the city system of sanitary sewers and with regard to a disposal plant which the city of Dayton was directed by the State Board of Health to provide for the proper disposal of sewage.

One of the points made by the city of Dayton in its application for a temporary order is that since the cases of the defendants against the city are on the equity side in that they pray for an injunction, and since that court so - acquired jurisdiction, they will retain it notwithstanding the effort of the defendants to deprive them thereof by withdrawing their prayer in that respect. It is a recognized rule in the different states and in the United States courts that, where a court once rightfully acquires jurisdiction of a cause it has the right to retain and decide that cause, and that the jurisdiction of a court depends upon the state of things at the time the action is brought, and after such jurisdiction is vested it cannot be ousted by subsequent events. By the word “jurisdiction” here we mean jurisdiction of the person and of the subject-matter of the litigation. There is no question made with regard to the jurisdiction of the court as to either in any of these cases. Nothing that could be done by the city by way of a change of conditions would deprive this court of the right to proceed. Nothing that could be done by the plaintiffs, on the state of the record existing at the filing of their petitions in these separate cases, would prevent a court of equity from determining as to Whether or not there was in fact a nuisance and, if they so found, to order it abated.

But we do not regard that as being the question before us. If a party asked for certain relief and thereafter dismissed his petition or voluntarily withdrew his prayer, the court would not insist on proceedings to an adjudication, notwithstanding such dismissal or withdrawal. When, therefore, these plaintiffs withdrew from the prayer of their petitions their requests for equitable relief, they made their election of remedies. It is not incumbent upon the court and the court would not feel inclined against their wish; to furnish equitable relief, and the ease would stand as.if no such prayer had ever been added to their petition. Defendants have the right of election within the scope of their petitions.

As we have said, one of the things which is prayed for in the petition before .us is that the cases brought by these several defendants be consolidated. Provision is made for such an order by the court in Section 11369 of the General Code, which reads:

“When two or more actions are pending in the same court upon motion and notice to the adverse party the defendant may require him to show why they should not be consolidated. If it appears that at the time the motion is made the actions could have been joined, and if the court, or a judge thereof finds that they ought to be joined, they shall be consolidated.”

In passing upon this section of the Code the Supreme Court of Ohio in the case of Taylor v. Brick Companies et al., 66 O. S., 360-365, say:

“The power of consolidation is not limited to identity of'parties and to causes of action which might be joined in the same petition under the rules of pleading; but it seems to have been purposely broadened so as to authorize the consolidation of all cases which might be joined either at law or in equity for convenience of trial, for preventing multiplicity of actions, or for the purpose of saving costs.”

Are these actions such as may be joined either in law or in equity? Pomeroy in his work on Remedies and Remedial Rights under the Code says:

“Persons jointly entitled or having a joint legal interest in the property or other rights affected by the tort must join any actions brought to recover damages therefor. On the other hand when the interest and right and the damage are both several, each person who has suffered the wrong must sue separately.”

The property affected by the alleged nuisance complained of by the defendant is different in each petition. The interests and rights of the defendants in those properties are not the same, the facts are several, and the damages which they claim to have suffered are peculiar to each. This being true it is manifest that the action brought by these defendants may not be joined or consolidated with respect to their claims for damages. 75 Wis., 401-402; 70 Miss., 182; 112 Wis., 15.

Shall a referee be appointed? By Section 11476 the Code provides:

“When the parties do not consent, the court or a judge thereof in vacation upon the application of a party or on its or his motion may direct a reference in any case in which the parties are not entitled to a trial by jury.”

Art. I, Sec. 5 of the Constitution of Ohio provides:

“The right of trial by jury shall be inviolate except,” etc.

Prior to the enactment of our constitution it was made a part of the Ordinance of 1787 that:

“The inhabitants of said territory shall always be entitled to the benefit * * * of the trial by jury.” '

The Seventh Amendment to the Constitution of the United States more nearly defines this right.

“In suits at common law where the value in controversy shall exceed twenty dollars the right of trial by jury shall be preserved,” etc.
A decision as to what constitutes a suit at common law is found in the United States Supreme Court Reports, Third Peters, pages 433-445; the court say:
“The trial by jury is justly dear to the American people. It has always been an object of deep interest and solicitude, and every encroachment upon it has been watched with great jealousy. The right to such a trial is, it is believed, incorporated into, and secured in every state constitution in the union; and it is found in the constitution of Louisiana. One of the strongest objections originally taken against the constitution of the United States, was the want of an express provision securing the right of trial by jury in civil cases. As soon as the constitution was adopted, this right was secured by the seventh amendment of the constitution proposed by Congress; and which received an assent of the people so general, as to establish its importance as a fundamental guarantee of the rights and liberties of the people. This amendment declares, that,
“ ‘In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved; and no fact once tried by a jury shall be otherwise re-examinable in any court of the United States, than according to the rules of the common law.’
“At this time there were no states in the union, tne basis of whose jurisprudence was not essentially that of the common law in its widest meaning; and probably no states were contemplated, in which it would not exist. The phrase ‘at common law,’ found in this clause, is used in contradistinction to equity, and admiralty, and maritime jurisprudence. The constitution had declared, in the third article,
“ ‘That the judicial power shall extend to all cases in law and equity arising under this constitution, the laws of the United States, and treaties made or which shall be made under their authority,’ etc., and to all cases of admiralty and maritime jurisdiction.
“It is well known, that in civil causes, in courts of equity and admiralty, juries do not intervene, and that courts of equity use the trial by jury only in extraordinary cases to inform the conscience of the court. When, therefore, we find, that the amendment requires that the right of trial by jury shall be preserved in suits at common law, the natural conclusion is, that this distinction was present to the minds of the framers of the amendment. By common law, they meant what the constitution denominated in the third article ‘law,’ not merely suits which the common law recognized among its old and settled proceedings, but suits in which legal rights were to be ascertained and determined, in contradistinction to those, where equitable rights alone were recognized, and equitable remedies were administered; or where, as in the admiralty, a mixture of public law, and of maritime law and equity was often found in the same suit. Probably there were few, if any, states in the union, in which some legal remedies differing from the old common law forms were not in use; but in which, however, the trial by jury intervened; and the general regulations in other respects were according to the course of the common law.”

The proper definition,. therefore^1of a suit’at common law would be .one in which■ leg¡al rights were-to, be.'ascertained and determined. A legal ;right ,is one which- maybe enforced in -a civil action and-¡for-the enforcement of such right as we have just seen our constitution provides the right of trial by jury.

With so much of the prayer, of their petitions withdrawn as we have -indicated, qnd with facts s'et out in these petitions which will -support-an action-at law for damages (17 O. C. C., 588, 3 Syl.), the character of .the actions may be determined by the relief, dejnanded notwithstanding that these same facts will support either an action at law or a suit in.equity.

“When a statement of facts constituting an action or causes- of action will support either, of two actions and it is doubted which the .pleader intended; the demand for judgment may be consulted with a view of ascertaining which action was intended.” Enc. Pl. & Pr.
“Under our present statute the test by which we are to determine the. character of actions in' those cases where the facts stated indicate two or more actions,' must be the relief demanded. We may at'-least safely adopt this’rule in cases of doubt and in cases like the present where the pleader conceiving himself entitled to prosecute several actions has so stated his facts as to leave it uncertain which he intended to pursue.” 13 Wis., 472.
“Where the facts stated entitle the plaintiff to elect between two remedies, to each of which the facts show him to be entitled,, the prayer may determine the character of the action because it is itself an election.” 21 O. S,, pages 277-280.

One of the. grounds on which the city asks for a reference of these cases is that a disposal plant is and has been for some time in contemplation and until that is constructed the conditions will remain the same; that the nuisance, if one exists, will be continuing and subsisting during the interval, and that as a result these plaintiffs may in the meantime institute other actions for the same cause as.those already filed, and that if á reference were had all such matters and things .might be considered by the referee, and an entire finding made, a multiplicity of suits avoided, etc. Our opinion with respect to thése claims of the city is that in filing such additional actions, if they become necessary, these .plaintiffs would not be exceeding their rights. In his work on the Law- of Nuisances, Joyce says:

“In case of nuisance or repeated trespasses damages can only be recovered up to the commencement of a suit because every continuance or repetition of. the nuisance gives rise to a new cause of action and the plaintiff may bring successive actions as long as the nuisance lasts.”

The rule as thus stated by this author is. adopted by ,the Court of Appeals in the 17 O. C. C. Reports at page 588, in the case of Toledo v. Lewis. The third syllabus of this case reads:

■ “In such case the injury to the plaintiff’s property is a continuing nuisance upon which suit may be brought from time to time, and in which the plaintiff can recover damages for the injury suffered up to the time of. commencement of the action, and in which the defendant might plead the statute of limitations as to injuries suffered moré than four years prior to the commencement of the suit.”

This case was affirmed by the Supreme Court of Ohio in the 52 O. S., page 624.

By an amendment which the plaintiff seeks to make to its petition it sets out further facts tending to show that the city itself is a riparian owner in the Great Miami river; that it operates a system of sanitary sewers for- the protection of the health and welfare of its inhabitants and the community surrounding it and has extended its system of sanitary sewers for many years; that the. growth of the city has been gradual and steady and the consequent. increase in the volume of sewerage emptied into the Great Miami river from the year 1891 to the present time has been gradual and steady and that no complaint has been made of the pollution and contamination of the river until recent years. We do not regard this averment as entitling the city to the in junctional relief for which it asks in this case. The Supreme Court of Ohio in Valley Railway Co. v. Fromm, 43 O. S., page 623, says:

“When the owner of lands rightfully and lawfully does an act entirely on his own land and by means of such act puts in action or directs a force against or upon, or that affects another’s land without such other’s consent or permission, such owner and actor is liable to such other for the damage thereby so caused to the latter, and at once a cause of action accrues for such damages, and said force, if so continued, is continued by the act of such owner and the actor, it may be regarded as a continuing trespass or nuisance and each additional damage thereby caused is caused by him and is a continual cause of action; and until such continued trespass or nuisance by adverse use ripens into and becomes a presumptive act and estate in the former, the latter may bring his action.”

The allegations of the city which we have just quoted are not to the effect that the discharge from its sewers was a nuisance for so long a period as that it. is entitled to be called a right or estate in the city to create such a nuisance.

Another amendment which the city seeks to make to its petition is to the effect that it is acting under the supervision and control of the State Department of Health. The authority last referred to is applicable to this claim. This court has indicated that it will not grant an injunction to these defendants in their respective cases, owing to the fact that a great public disaster would result too terrible to contemplate. These defendants have left them the remedy of damages and are entitled to a trial for the determination of the amount, if any, to which each is entitled. Damages are not given in a court of equity where equitable relief is denied. In such a case the court .is of the opinion that a plaintiff should proceed at law when his right to so proceed is accorded him.

It is apparent from the foregoing that it is the opinion of this court that these cases ought not to be consolidated; that as they stand with the amendment to the prayer, they are actions at law; that as such no referee ought to be appointed and the respective defendants are entitled to try their cases to a jury, and that the petition of the plaintiff does not in law show any case which entitles it to a restraining order enjoining the defendants from proceeding with separate trials of their several cases.

The demurrer is sustained and the restraining order is denied. Let an entry be drawn accordingly.  