
    Sampson Sammons, Plaintiff, v. The City of Gloversville, Defendant.
    (Supreme Court, Fulton Trial Term,
    April, 1901.)
    Trespass by discharge of city sewage — Bight to sue one joint trespasser — Injunction against a city.
    The discharge of city sewage upon the property of an individual is a taking of that property within the meaning of the Constitution, even though the sewer was constructed under legislative authority.
    Where several persons contribute to the harmful sewage the plaintiff may sue one separately provided the defendant is shown to have caused him substantial injury and the damages may be apportioned.
    After it has been legally determined that the plaintiff has been injured by the sewage of a city he is entitled to enjoin a continuance of the trespass, although the acts of the city were of such public necessity as the disposal of its sewage.
    The court, however, directed that the injunction should not become operative until one year from service of notice of entry of the decree in the action and, even longer, if more time should be required by the city to obtain appropriate legislation as to its sewage or establish a new system therefor.
    Motion for an injunction.
    M. D. Murray (A. J. Nellis, of counsel), for plaintiff.
    Frank Talbot (Edwin Countryman, of counsel), for defendant.
   Houghton, J.

The court has found from the evidence that the sewage from the city, defendant, is a substantial injury to the property rights of the plaintiff. While the damages allowed for that part of the injury which the defendant has contributed are not large, yet they are substantial. The defendant by the discharge of its sewage upon the plaintiff’s property continues the injury from day to day.

The discharge of sewage upon the private property of an individual is the invasion of a private right and the talcing of private property within the meaning of the Constitution. Huffmire v. City of Brooklyn, 162 N. Y. 584. And this is so although the sewer was constructed under legislative authority. The fouling of a stream which runs through an individual’s land, by the discharge of sewage, is a similar invasion. Chapman v. City of Rochester, 110 N. Y. 273; N. Y. C. & H. R. R. R. Co. v. City of Rochester, 127 id. 591; Moody v. Village of Saratoga Springs, 17 App. Div. 207, affd. 163 N. Y. 581.

The principle upon which the courts have refused injunction in the Elevated Railroad cases is that the presence of the railway has so increased the value of property that the actual damages are only nominal, and injunction has been refused because the trespass is but' technical and the real injury unsubstantial. Gray v. Manhattan R. Co., 128 N. Y. 499; O’Reilly v. New York Elevated R. R. Co., 148 id. 347.

From, the testimony in the case at bar, it cannot be said that the trespass is but technical and the real injury unsubstantial. It is true that others contributed to the injury and that the court has found that the various private tanneries sewering into the stream contribute one-third of the damage to the plaintiff’s land, and that the sewage of the city of Johnstown also contributes one-third to the damage which plaintiff sustains. Notwithstanding the fact, however, that the defendant contributes only one-third to the damage, yet I do not think it can be said that that damage is unsubstantial and technical.

It is true that the injury to plaintiff will not be wholly obviated by restraining the defendant alone, but if the plaintiff suffers substantial damage from one, he has the right,! think, to stop that, notwithstanding the fact that he may suffer also from another source. He could sue all and thus obtain entire relief; but he has the right also to sue the persons who injure him separately, and if he proves substantial injury from that source, he has the right to have that part of the injury cease. He can take the others in their order, if he sees fit, and thus relieve himself entirely or he can waive the injury by not asking to be relieved.

It is true that the restraining of the defendant may cause great public inconvenience, and my own impressions were, before an examination of the authorities, that the court was not hound to grant an injunction, but it seems to have been the uniform practice in this State, after the case has been tried "and it has been determined that the plaintiff suffers substantial damage, to restrain the continuance of the trespass, notwithstanding the fact that those acts were' of such public necessity as the disposal of sewage from a large town or city. Such was the course adopted in Moody v. Village of Saratoga Springs, 17 App. Div. 207, affd. 163 N. Y. 581; N. Y. C. & H. R. R. R. Co. v. City of Rochester, 127 N. Y. 591; Chapman v. City of Rochester, 110 id. 273, and Smith v. City of Rochester, 38 Hun, 612, affd. 104 N. Y. 674. The same principles are enunciated in Garvey v. Long Island R. R. Co., 159 N. Y. 323; Townsend v. Bell, 42 App. Div. 409, as well as in Huffmire v. City of Brooklyn, 162 N. Y. 584.

Substantially all of the decisions cited by counsel for the de-’ fendant where courts have refused injunction under similar circumstances, arose on application for injunction before the trial of the action. Such was the situation in Flint v. Charman, 6 App. Div. 121; Abraham v. Meyers, 29 Abb. N. C. 384; Gallatin v. Oriental Bank, 16 How. Pr. 253; Cornwall v. Sachs, 69 Hun, 283; Swift v. Jenks, 19 Fed. Repr. 641; Sellers v. Parvis & Williams Co., 30 id. 164; Scanlan v. Howe, 24 N. J. Eq. 273; Hilton v. Earl of Granville, 1 Cr. & P. 283; Attorney-General v. Mayor, of Liverpool, 1 Mylne & C. 171. In New Jersey and Pennsylvania the rule appears to be somewhat different from that in New York. See Society for Establishing Useful Manufactures v. Butler, 12 N. J. Eq. 498; Torrey v. O. & A. R. Co., 18 id. 293; Richards’ Appeal, 57 Penn. St. 105; Harkinson’s Appeal, 78 id. 196; Grey v. Ohio & Pennsylvania R. R. Co., 1 Grant, 412. In Parker v. Winnipiseogee Lake Cotton & Woollen Co., 2 Black (U. S.), 545, the injunction was denied because plaintiff had an adequate remedy at law. In McSorley v. Gomprecht, 30 Abb. N. C. 412, the trial court denied an injunction against the continuing of a projection of a wall one inch upon the plaintiff’s premises, on the ground that the injury was so slight that an injunction would be an absurdity, and that full compensation could be made for the permanent injury by the assessment of damages. In Irwin v. Dixion, 9 How. (U. S.) 10, the injunction appears to have been denied because the plaintiff’s right had not been fully established by the trial.

I see no relief for the defendant except through some appropriate legislation giving it the right to condemn lands situated as the plaintiff’s are, and in that way to obtain the right to dispose of its sewage in such reasonable and proper manner as the necessities of the case demand.

My conclusion is that an injunction must be granted restraining the defendant from continuing to foul the plaintiff’s premises by the discharge of its sewage into the stream running through his lands. But the injunction shall be so framed that it shall not be operative for the period of one year from service of the notice of entry of the decree, and shall also contain a provision that this court at Special Term shall have the right to postpone the operation of said injunction for such reasonable time beyond said year as may seem necessary for the obtaining of appropriate legislation, or the establishing of a different system of sewage for the defendant city.

Ordered accordingly.  