
    Julius P. Morgan, Resp’t v. City of Binghamton, App’lt.
    
    
      (Court of Appeals,
    
    
      Filed June 1, 1886.)
    
    Nuisance—Sewers—Injunction against construction oe.
    An injunction should not be granted to prevent the construction of sewers where the injury complained of is wholly contingent and not inevitable, and dependent upon various uncertain future events, such as, that in the course of three years the discharge therefrom will be strewn along the banks of the river, strand upon low lands of plaintiff, and tend to produce offensive and unhealthy odors, etc.
    Appeal from a judgment of the general term supreme court, third department, affirming a judgment in favor of the plaintiff entered upon the trial of the action by the court without a jury.
    
      A. D. Wales for app’lt; G. L. Sessions for resp’t.
    
      
       Reversing 33 Hun, 603.
    
   Pinch, J.

The findings of fact of the trial judge are conclusive for all the purposes of this appeal.

If the evidence leaves any of them doubtful, the deficient proof may have been supplied by his personal examinations, since he went over the route of the sewer and took careful observation of the locality, with the consent of both parties and doubtless aided by their suggestions. The sole question before us, therefore, is whether upon those findings the plaintiff was entitled to so far defeat the plan of sewerage adopted by the common council as to prevent aiid restrain the connection of other sewers with that running through Carroll street.

It is not contended that any of the sewers as planned will discharge their contents upon plaintiff’s land, or in any manner touch or interfere with his premises, and all the cases in which equity has interfered to prevent the discharge of sewage upon private property have no application.

The prevailing opinion at general term indulges in that misapprehension, and has been criticised upon the argument in that respect. The injury apprehended is not that, but something very different. Instead of a direct trespass it was a consequential damage which is threatened. The theory of the findings is that in one or two, or very surely in three years after the branch sewers are emptied into the Carroll street sewer, and have become largely connected with premises along their lines, the discharge at the mouth of the Carroll street sewer into the river will be strewn along its banks, and stranded upon low lands, and tend to produce offensive and unhealthy odors, tainting the air and planting the seeds of disease; and that the premises of the plaintiff are so situated as to be peculiarly exposed to these dangers by reason of proximity.

The evil, will reach the plaintiff, if at all, through the poisoning and infection of the air, and not from any discharge of sewage upon his lands or any deposit of it there by the river currents.

The findings plainly disclose two characteristics of this apprehended danger. It is not imminent, and it is wholly contingent and not inevitable. No immediate danger exists. It is found to be possible within one or two years, but not certain to occur sooner than in three years.

Every finding which prognosticates threatened evil, is qualified by the phrase “in time,” which limits it to some indefinite future period; and when the findings seek to fix that, they postpone it, as a certain danger, for three years. But they leave it then merely a contingency depending, as the findings express it, upon.the condition that the branch sewers “ should be mainly used by the inhabitants ” of the adjoining streets. Nobody knows when they will be so “mainly used.”

Houses which have their own cesspools and privy vaults may not for many years be fitted with modern closets and sewer connections. Such improvements are beginning to be questioned for their own evils and dangers and may come slowly, and no evidence or finding indicates the probable period. The contingency as to time is further made to ‘ depend very much upon the quantity of water used in the sewer.” The twenty-sixth finding of the trial judge explicitly declares that “ the pernicious effects of the depositing of sewer matter at this point, and the time when such will be felt, are dependent upon various uncertain future events; ” and this shows that the evil itself, as well as the date of its appearance, are alike contingent, and not inevitable. The danger, therefore, which can alone support this injunction, is in the air of an uncertain and indefinite future. Its possible coming rests upon opinion and speculation. It is both doubtful and remote. Experience only can test the question, satisfactorily, and meantime a carefully planned system of sewerage, meant to secure health and cleanliness to a growing-city, is maimed and disjointed.

Such a result, it seems to us, ought not to be sustained. The restraining force of a court of equity should very rarely, in the absence of fraud or bad faith, set it itself above the discretion and judgment of administrative officers, to whom the law commits a decision (High, Inj., §1370); and this for the evident reason that a reversal of their judgment is but saying that the court judges differently upon what has been intrusted to another discretion, and simply confronts that opinion with its own. And where the evidence is conflicting, and the injury doubtful, eventual, or contingent, the tribunal intrusted by the law with the plan and execution ought not to be overruled. Hil. Inj., 305; Swett v. City of Troy, 62 Barb., 630. “ Injury, material and actual, not fanciful or theoretical, or merely possible, must be shown as the necessary or probable results of the action sought to be restrained.” People v. Canal Board, 55 N. Y., 397. The injury described in the findings before us is problematic, distant, merely possible. Consistently with all their averments, it may never occur, and is only prophesied upon the basis of the happenings of certain contingencies which may or may not arise. Meantime a plan of improvement looking to the health and comfort of the city and its inhabitants, adopted in good faith by the municipal authorities, with the aid of an engineer not claimed to be incompetent or unskillful, is stopped and dismembered, and the branch sewers left useless, to the inconvenience of all desiring their benefit. For three years, at least, and very probably for a longer period, the findings leave it certain that no evil will result; and if, upon actual experiment, it is found that sources of danger exist, it must be presumed that the constituted authorities will do their duty, and adopt some plan to remove it. Such a plan the court below suggests, involving a very serious increased expense. That ought not to be forced upon the city until some present necessity shall compel. To sustain this judgment would push our authority beyond its limits, and hamper official bodies, making public improvements, beyond reason.

So much of the judgment of the general term as is appealed from should be reversed, the injunction dissolved, and a new trial granted, costs to abide the event.

All concur.  