
    HIGHWAYS — MUNICIPAL CORPORATIONS — SEWERS.
    [Lucas (6th) Circuit Court,
    October 18, 1906.]
    Haynes, Parker and Wildman, JJ.
    Alice M. Whitney et al. v. Toledo (City) et al.
    1 Public Highway Outside City may be Used for Storm Water Sewer to Drain Streets of City Adjacent Thereto, not Additional Burden.
    The construction of a sewer along a street in a city and out on a public highway beyond the municipal corporate limits, designed as a storm and surface water sewer to drain the streets and public ways of the city in the sewer district adjacent thereto and to empty into a creek on land just outside the corporate limits, is such a use of the public highway as was in law contemplated by the original proprietors of the adjacent land when they dedicated the land in the highway to the public use. Such construction will not be enjoined at the instance of an adjacent proprietor as being burden in addition to the regular public easement in the highway.
    [Por other cases in point, see 6 Cyc. Dig., “Municipal Corporations,” §§ 1176-1182, 2033-2043. — Ed.]
    2. Storm and Surface Water Sewer -along Highway and Emptying into Creek may not be Used also for Sewerage Purposes without Appropriating Right from Adjacent Owners.
    While a sewer designed to drain the streets and public ways of a city in the adjacent sewer district and extending along a public highway beyond the city limits may lawfully be constructed in such highway, it may not lawfully be used for sewerage purposes to the injury of private property adjacent to its outlet until the city constructing such sewer has acquired the necessary right by appropriation proceedings. Such use for sewerage purposes will be enjoined at the instance of a private owner injured thereby until such right has been lawfully acquired.
    [For other cases in point, see 5 Cyc. Dig., “Injunction,” §§ 256-268. — Ed.]
    [Syllabus approved by the court.]
    E. M. Beard, for plaintiffs.
    G. N. Fell, for Toledo.
    W. H. McLellan, for Breymann and- O’Neill.
   PARKER, J.

Sewer district No. 27 of the city of Toledo, is located in the west part of the city. A main or trunk sewer has been projected by the city, extending through said district, for a distance of something over a mile along certain streets and alleys, coming out upon Monroe street, within a few hundred feet of Ottawa creek; thence traversing Monroe street to the creek, where it is designed to empty.-

Breymann and O’Neill are the contractors who are to build this sewer.

Within about 150 feet, or thereabouts, of where the sewer empties, it crosses the city line, and for the remainder of the distance, traverses or continues in Monroe street, which is known, I believe, as the Monroe road, outside of the boundaries of the municipality.

The plaintiffs own a tract' of eighty acres of land, joining the west line of the city, lying upon both sides of the Monroe road at this point, and upon both sides of Ottawa river, sometimes called Ten Mile creek. This is to be a covered sewer of brick construction. For the distance between the city line and the mouth of the sewer, the sewer will be upon the northerly side of the road.

Plaintiffs’ land is used and occupied 'for farming, grazing and dairy purposes. The cattle upon the place — and the same is true of adjoining tracts of land — habitually frequent this creek and drink from its waters; and the waters at this point appear to us to be fit for such use.

The evidence tends to show that, there are sewers emptying into the creek lower down; but none so far up the creek as this proposed sewer.

Plaintiffs seek to enjoin the construction of this sewer on the ground that its use will pollute the waters of the stream; and upon the further ground that even ■ if they do not so pollute the waters of the stream, this use of the highway is unauthorized and may not be made, unless the right thus to use it shall have been acquired by appropriation proceedings.

There seems to us to be no question but that the city has a right to construct the sewer and to carry it beyond the city limits. But this, of course, leaves unsettled the right of the city as against the private right asserted by the proprietor of these lands. . In other words, the city has the authority thus to proceed, provided it acquires the tights of private proprietors; and it seems to us clear from the evidence that the sewer is needed; that it is a public necessity; that the board of health of the state has authorized its construction, and the emptying of it into this creek at this point; and that the county commissioners, insofar as they have authority over the public road outside of the city limits, have consented to its location in the public road.

But insofar as the construction of the sewer may infringe upon the private rights of the plaintiffs, of course the authority exercised by the council or received from the state board of health, or from the county commissioners, cannot affect such private right.

It appears to us from the evidence 'that though this sewer is designed for storm water, or surface water, and sewage as well, in all probability it will be some time before the sewage emptying into this sewer will be of a quantity to affect injuriously in a marked degree the water in the creek; and yet, should it affect it injuriously to any extent, we think that to that extent the plaintiffs have a right to. complain, and to that extent it would be laying burden upon the plaintiff’s land in addition to that of the public easement in the road for road purposes.

The rights of the contractors here can rise no higher than those of the city. But we are of the opinion that the rights of the city and of the contractors as well, to construct this sewer and to use it for 'the drainage of surface or storm water are clear under the law. Not so however of the right to use. it for sewage purposes.

Without expressing any opinion as to what the public authorities might do in the way of using a public thoroughfare or highway, or the channel of a stream, for the location of a«sewer to carry water away from private land, we think that the right so to use the same for the purpose of draining roads, streets, highways and the adjacent territory necessary to the preservation or improvement of the public highways is entirely clear under the law; and that this right in this instance extends, not only to the drainage of the Monroe road and Monroe street, but to the drainage of any other roads and streets in that locality that may be drained through and over Monroe street and the Monroe road.

Though the propxdetors of these lands who originally dedicated the part which is now called the Moproe road, may not have actually contemplated the filling up of this adjacent territory with houses and dwellings by the growth of the city, yet we think that by the law he must be held to have contemplated that, and that no matter how extensive or how numerous the streets, roads and highways laid out in that vicinity, either within the corporate limits or outside the corporate limits, the part of this territory in question known as the Monroe road, lying between the' city limits and the creek, ,has become subservient to the right and easement of the public in the drainage of all such public ways. And insofar as this sewer may be designed for such use, we hold that its location therein is an entirely lawful use of the highway.

It does not appear to us from the testimony that there will be in the construction of this sewer any injury to the plaintiff’s premises in the way of hindering the access thereto, or m any other way. It seems that the construction will be rather an improvement in that respect than otherwise. Nor does it appear that by the casting of additional fresh water upon the premises at the outlet of this sewer, there will be any injury to the plaintiff’s premises. Indeed it is not claimed that it would be, by the plaintiffs or their counsel. The creek at this point in dry seasons becomes nearly dry; at some times the current of the stream stops entirely; and an additional flow of fresh and pure water would be rather ■ a benefit to the plaintiffs ’ premises than otherwise; so that so long as it is used as a drain for surface water or clear water, or such water as naturally flows from the streets and highways, — that of course is not., entirely pure water, but is fluid of an entirely different character from sewage, — we hold that it may be lawfully so used. ¡

, But we are of the opinion that it may not be. lawfully used for sewage purposes until the right so to. use, it has been acquired by appropriation proceedings, and that the emptying of sewage should be forbidden without waiting for any material damage to the plaintiffs’ premises. It would be an infringement on the plaintiffs’ rights to require them to submit to the use of this sewer for sewage purposes, in ' ever so small a degree, until the right thus to use it had been acquired. Under Sec. 19 of the bill of rights, such use of plaintiffs’ premises in ever so small a degree would be a taking of their property, and this taking may not be done until the right is first acquired and paid-for.

The decree of the court will be, that the petition will be dismissed as to the contractors, Breymann and O’Neill. They will be permitted to construct this sewer. The city will be permitted to use it for the drainage of the streets and highways which it traverses and the streets and highways within the district. But the city will not be permitted to connect any private residences with this sewer, or any buildings or any places that would empty sewage into it until it has acquired the right by appropriation proceedings. We think that the plaintiffs have not proceeded prematurely here; but that they were quite fight in proceeding to enjoin this threatened injury of their premises; and it is apparent from the attitude of the city here that the city was going ahead to make this — that we regard as an unlawful use of the premises— without first appropriating the right therefor. The costs of the proceeding will be adjudged against the city.

No costs will be adjudged against Breymann and O’Neill. There have been no costs of any consequence made by adding the contractors as parties, and we think that for the sake of conformity they should have been and were properly made parties defendant.

Haynes and Wildman, JJ., concur.  