
    Simon Schriver, Resp’t, v. The Village of Johnstown, App’lt.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed September 15, 1893.)
    
    1. Nuisance—Injunction.
    Where a municipal corporation has established a permanent system of sewers by which the sewage is collected and emptied into the pond of an individual, thereby polluting the water and causing a large deposit of offensive matter therein, such individual is entitled to a perpetual injunction restraining such nuisance and to at least nominal damages.
    '3. Same—Damages.
    In an action to abate a nuisance and for damages against one of several wrongdoers, where all the evidence bearing on the question of damages which in the nature of the case is fairly possible has been given, it is no defense to the wrongdoer that the judgment against him must involve more or less estimate or opinion.
    Appeal from judgment in favor of plaintiff, entered upon the report of a referee, for $2,000, and restraining the defendant: from ■conducting to and depositing in plaintiff’s pond or the streams flowing into said pond any solid matter whatever, whereby the stor-age capacity of the £>ond is diminished or the plaintiff’s machinery obstructed, or the business carried on upon plaintiff’s premises injuriously affected.
   The following is the opinion of the referee:

Richard L. Hand, Referee.

It seems to be established by the evidence that the defendant’s sewers gather and discharge into the ■plaintiff’s pond a large amount of noxious and offensive matter which would not otherwise find its way there, and that the result is not only pollution of the water, but an actual deposit upon the premises of the plaintiff of such offensive matter in considerable quantities. This is in the nature of a direct trespass, not unlike a deposit of the same matter by hauling in wagons, and cannot be justified. Hooker v. City of Rochester, 37 Hun, 181.

It constitutes a continuing trespass and is a nuisance which should be enjoined by the court. This is the common remedy. Townsend v. Bell, 62 Hun, 306; 42 St. Rep., 229.

The exercise of corporate powers under general legislative sanction does not relieve the defendant from responsibility in such a case. Noonan v. City of Albany, 79 N. Y., 470; Seifert v. City of Brooklyn, 101 id., 136; Chapman v. City of Rochester, 110 id., 273; 18 St. Rep., 133; Stoddard v. Saratoga Springs, 127 N. Y., 261; 38 St. Rep., 683; Beach v. City of Elmira, 11 N. Y. Supp., 913 ; 34 St. Rep., 522; Bacon v. Oity of Boston, 28 N. E. Rep., 9.

Nor do we think it defeats the plaintiff’s rights to an injunction that he has himself contributed to or acquiesced in the pollution of the stream upon his land. If the defendant did nothing more than pollute this water so as to impair or destroy the plaintiff’s enjoyment of the water as it was wont to flow over his land, we are inclined to think the fact of pollution by the plaintiff himself would be a complete answer to his complaint. He could'" hardly be heard in a court of equity to complain of the injury which the defendant was doing to him when it appeared that he was himself doing precisely the same injury to himself, as well as to all below him on the stream.

It may be doubted whether this situation is strictly within the principle of the “trademark” cases cited by the defendant. See also Hazard v. Caswell, 93 N. Y., 259; N. Y. Card Co. v. Union Card Co., 39 Hun, 611.

But however this may be, it would seem sufficiently absurd to give one tort feasor an action against another for doing precisely the same thing. Certainly there has been no contribution among wrong-doers since Merryweather v. Nixan, 8 T. R., 186, unless within certain well defined exceptions which do not touch the question; and equity will not interfere under such circumstances.

But, notwithstanding this, we think the plaintiff suffers injury from the wrongful acts of the defendant to which he does not contribute, and from such injury he should have relief. The true principle is well stated by the supreme court of Iowa, in a recent case: “ Acts of plaintiff sufficient to defeat his recovery would be such as contributed to cause those things of which he complains. If he has sustained damage from the wrongful acts of the defendant to which he did not contribute, then he should recover therefor.” Ferguson v. Firmenich M'fg Co., 77 Iowa, 576; S. C., 14 Am. St, 319, 322.

This appears to be an action at law, but we think the rule is the same in equity. Wood on Nuisances, § 484, p. 533; Jackman v. Arlington Mills, 137 Mass., 277.

There can hardly be a question that this is so in the case of a defendant who brings onto the premises of the plaintiff large quantities of solid matter, lessening the capacity of his pond and interfering with his business in other ways.

The waters of this pond had been condemned to secondary uses before any sewers were built by the defendant, and the plaintiff himself had contributed to that result. I have no hesitation in deciding that this water had become entirely unfit for domestic use from causes for which the defendant is not responsible, and that the plaintiff is entitled to no damages for depreciation in the value of the enjoyment of the water for primary uses, including the ice formed thereon.

His damages, occasioned by the defendant, are difficult of measurement, and, indeed, the evidence does not furnish means for ascertaining them with precision.

As to the expense of removing from the plaintiff’s premises any deposit of matter brought there by the defendant, the evidence gives no data for determining the amount of such deposit, and consequently this element of damages cannot be considered.

J. Keck (Matthew Hale, of counsel), for app’lt; Smith & Nellis (Andrew J. Nellis, of counsel), for resp’t.

We think the only measure of damages which can be used is depreciation of rental value. And as to this, it is very difficult to determine to what extent it is attributable to the defendant. The defendant can be charged only with that part of the injury occasioned by its own wrong. Chipman v. Palmer, 77 N.Y., 51.

And here are several sources of this depreciation. The filling up of the pond is contributed to by much sand and other substances brought down by the current, by surface drainage, by bran and other refuse from the mills, etc. The filthy contents of the water interfering with plaintiff’s business do not come wholly from sewers, but in part from privies, mills, surface drainage, etc., without connection with those sewers. A part of the depreciation in rental value is due to the pollution of the water, rendering it and the ice formed updn it unfit for domestic use, as we have seen, and under circumstances which eliminate it from the case on the question of damages.

Still, when it is reasonably certain that the defendant has caused injury to the plaintiff, it is the duty of the court to arrive at the amount of damages, although its judgment is an estimate and certainty is impossible. Drucker v. Manhattan Railway Co., 106 N. Y., 157; 8 St. Rep., 599.

The result of our examination of the question is that the total depreciation in rental value since the introduction of the sewers in 1882 may be fairly estimated at $600 per annum. From this should be deducted for domestic purposes, ice, etc., $300, leaving $300 per annum. One-third of this may be regarded as due to causes for which the defendant is not responsible. Upon this basis we find the damages to be at the rate of $200 per annum, which, for the years elapsed since defendant introduced its sewers, gives a total of $2,000 damages against the defendant.

Putnam, J.

The learned referee has written a very satisfactory and exhaustive opinion, on which I think the judgment should be affirmed. On competent and sufficient evidence he has found that the defendant in June, 1882, completed a permanent system of sewers and gutters in the streets of the village of Johnstown, through which the sewage of said village was collected and emptied into plaintiff’s pond, not only polluting the water, but causing a large deposit of offensive matter therein. That ever since said period the flow of said sewage onto plaintiff’s premises has continued.

Such being the facts of the case, I think the plaintiff was entitled to the judgment awarded of a perpetual injunction, and to at least nominal damages. Noonan v. City of Albany, 79 N. Y., 477 ; Stoddard v. Village of Saratoga Springs, 127 id., 261; 38 St. Rep., 683.

The only damages allowed by the referee are for the diminution of the storage capacity of plaintiff’s pond caused by the deposit therein of the contents of defendant's sewers, and the destruction of his machinery, and the consequent injury to his business. The referee determined that such deposit depreciated the rental value of plaintiff’s premises $200 a year.

The depreciation in the rental value of plaintiff’s premises, however, was shown on the trial to be attributable to several causes. The pollution of the water, for which no damages were allowed by the referee; the natural surface drainage of the village of Johnstown; the drainage of other mills; the contents of private sewers, privies, etc., together with defendant’s sewage produced such depreciation. There is no evidence showing with .any degree of certainty the amount of the deposit in plaintiff’s pond caused by defendant’s sewers, and the amount produced by other causes, or to what extent the rental value of plaintiff’s premises is diminished by acts of defendant.

As the referee very properly suggests, “ His (plaintiff’s) damages occasioned by the defendant are difficult of measurement, and, indeed, the evidence does not furnish means of ascertaining them with precision.’’

The serious question of the case, and one on which I entertain, considerable doubt, is whether the evidence was sufficient to justify the finding of the referee as to the amount of plaintiff’s damages. It is urged that without any evidence showing the amount of deposit in the pond caused by defendant, and the quantity left there by other sewers, the conclusion of the referee as to the amount of the diminution of the rental value produced by defendant is founded on mere conjecture. It must be admitted that there is some plausibility in this position. But there are well considered authorities which seem to sustain the view of the learned referee.

Drucker v. Manhattan R. Co., 106 N. Y., 156; 8 St. Rep., 599, was an action brought against the defendant for damages for interfering with plaintiff’s easement in a street. The damages allowed was the diminution of rental value of plaintiff’s property. The evidence tended to show that such diminution was caused by defendant's road, and also by a tendency of the business to move “ up-town.’’ In the opinion the following language is used: “It is often the case that damages cannot be estimated with precision and the basis of accurate calculation is wanting and inadequate. That is notably true in many cases of personal injuries. Such evidence as can be given should be given, and facts naturally tending to elucidate the extent of loss should not be withheld. But when all the proof which, in the nature of the case, is fairly possible is given, the good sense of a jury must provide the answer, and it is no defense that such judgment involves more or less estimate and opinion, having very little to guide it. That criticism has no force in the mouth of the wrongdoer when all reasonable data have been furnished for consideration.”

The same doctrine is held in Tallman v. Met. El. R. Co., 16 St. Rep., 684. In Van Steenburgh et al. v. Tobias, 17 Wend., 562-63, Judge Gowen, holding that a joint action does not lie against the separate owners of dogs by whom the sheep of a third person has been killed, says: “ The difficulty in accurately estimating the damage done by each dog is not an argument of sufficient strength to warrant the injustice of punishing a man who is innocent. The jury must, in this, as inmost cases of wro7ig, gel at the real damages in the best way they can.”

In a similar action, Buddington v. Shearer, 20 Pick., 477-479, it was held: “ There may be some difficulty in ascertaining the quantum of damage done by the dog of each, but the difficulty cannot be great. If it could be proved what damage was done by one dog, and what by the other, there would be no difficulty; and on failure of such proof each owner might be liable for an equal share of the damage, if it' should appear that the dogs were of equal power to do mischief and there were no circumstances to render it probable that greater damage was done by one dog than by the other.”

The same doctrine is held in Auchmuty v. Ham, 1 Denio, 495, and in Partenheimer v. Van Order, 20 Barb., 479.

It follows that, in actions like the one we are considering, as in those for personal injuries, where all the evidence bearing on the question of damages “ which in the nature of the case is fairly possible ” has been given, it is no defense to the wrongdoer that the judgment against him must involve more or less estimate or ■opinion. In this case the evidence given on the trial was voluminous and all the facts bearing on the question of damages, as far as possible, seem to have been brought out, and I think, under the authorities cited, the conclusion of the referee was warranted by the evidence and therefore that the judgment should be affirmed.

Judgment affirmed, with costs.

Mayham, P. J., and Herrick, J., concur.  