
    Peyton v. Hammer et al.
    [Cite as Peyton v. Hammer (1970), 27 Ohio Misc. 68.]
    (No. 21518
    Decided December 14, 1970.)
    Common Pleas Court of Clinton County.
    
      Messrs. Dennis & Cartwright, Mr. Herman G. Cartwright, Jr., for plaintiff.
    
      Mr. Thomas W. Sprinkle, for defendants.
   Swaim, J.

Plaintiff owns land in Blanchester, this county, through which a small branch or run flows, and asks for an injunction against defendants, restraining them from draining offensive waters, such as sewage, wash waters and the like, into this small waterway. Defendants claim a prescriptive right to use such small stream for their drainage, as same has been so used for more than 21 years.

The evidence showed that defendants did empty their wastes such as sewage, wash water and the like into this stream, that the same was offensive, particularly in warm weather, that dead tadpoles and minnows had been seen in this stream, when in the opinion of witness, they could have survived in clear water. Also, that this small stream had been so used since the early 1940’s, when the houses now owned by defendants were built.

The waters of this small branch flow into Second Creek, in or near Blanchester, and this creek flows into Todds Fork (of the Little Miami Eiver) southeasterly from Morrow, Warren County, and this fork flows into the Little Miami Eiver in Morrow, and this river flows into the Ohio Eiver on the easterly side of Cincinnati.

The waters of this little branch (or run, or brook, or rivulet), are governed by the provisions of R. C. 6111, styled “Water Pollution Control,” of which several sections are pertinent here.

“R. C. 6111.01. Definitions: As used in R. C. 6111.01 to 6111.08, inclusive, and R. C. 6111.31 to 6111.38, inclusive:
“(A) ‘Pollution’ means the placing of any noxious or deleterious substances in any waters of the state or affecting the properties of any waters of the state in a manner which renders such waters harmful or inimical to the public health, or to animal or aquatic life, or to the use of such waters for domestic water supply, or industrial or agricultural purposes, or for recreation.
“(B) ‘Sewage’ means any substance that, contains any of the waste products or excrementitious or other discharge from the bodies of human beings or animals, which pollutes the waters of the state.
“(D) ‘Other wastes’ means garbage, refuse, decayed wood, sawdust, shavings, bark, and other wood debris, lime (except hydrated or dehydrated lime), sand, ashes, offal, night soil, oil, tar, coal dust, or silt, and other substances which are not included within the definitions of sewage and industrial waste set forth in this section, which pollute the waters of the state.
“(H) ‘Waters of the state’ means all streams, lakes, ponds, marshes, watercourses, waterways, wells, springs, irrigation systems, drainage systems, and all other bodies or accumulations of water, surface and underground, natural or artificial, which are situated wholly or partly within, or border upon, this state, or are within its jurisdiction, except those private waters which do not combine or effect a junction with natural surface or underground waters.
“(I) ‘Person’ means the state, any municipal corporation, notwithstanding R. C. 6111.11, political subdivision, public or private corporation, individual, partnership, or other entity.”
“R. C. 6111.04. Acts of pollution prohibited; exceptions.
“No person shall cause pollution as defined in division (A) of R. C. 6111.01 of any waters of the state, or place or cause to be placed any sewage, industrial waste, or other wastes in a location where they cause pollution of any waters of the state. Any such action is hereby declared to be a public nuisance, except in such cases where the water pollution control board has issued a valid and unexpired permit, or renewal thereof, as provided in R. C. 6111.01 to 6111.08, inclusive.
u* * *
“No person who is discharging or causing the dis- ' charge of any sewage, industrial waste, or other wastes into the waters of the state shall continue or cause the continuation of such discharge after September 27, 1952, without first obtaining a permit therefor issued by the board, pursuant to rules and regulations to be prescribed by it.”
“R. C. 6111.08. Equity and common law rights unaffected..
“R. C. 6111.01 to 6111.08, inclusive, do not abridge rights of action or remedies in equity or under the common law, nor do such sections, or any act done under such sections, estop the state, or any municipal corporation or per.son, as riparian owners or otherwise, in the exercise of their rights in equity or under the common law to suppress nuisances or to abate pollution.”

These sections were first enacted in 1951, as part of the “Water Pollution Control Act of Ohio,” 124 Ohio Laws 855. Of that Act, G. C. 1261-1b, as amended is now R. C. 6111.01; G. C. 1261-1e, as amended, is now R. C. 6111.04; and G. C. 1261-1i, as amended, is now R. C. 6111.08.

The defendants rely upon Cleveland v. Standard Bag & Paper Company (1905), 72 Ohio St. 324, for support of their theory of prescriptive right for their pollution of this small stream:

The law therein was no longer law in Ohio, prior to the enactment of the Water Pollution Control Act of Ohio in 1951, as is seen by Vian v. Sheffield Building & Development Co. (1948), 85 Ohio App. 191, of which the syllabus is:

‘ ‘ 1. One may not obtain by prescription, or otherwise than by purchase, a right to cast sewage upon the lands of another without his consent.
“2. The discharge of effluent, from a disposal system, into a public watercourse, from which, through natural and artificial means, it finds its way onto the lands of another, and the permitting of overflow from a sewage wet well to drain onto the lands of another, may be enjoined.”

This case is no longer law in Ohio, except as to the enjoining of pollution of waters of this state.

Modern thinking upon the pollution of waters is in Board of Commissioners of Lake County v. Mentor Lagoons, Inc. (1965), 6 Ohio Misc. 126, in which the question was alleged pollution of Lake Erie.

No claim was made by the defendants that there had been a valid permit issued to any of them by the Water Pollution Control Board after September 27,1952, for their wastes to go into this small stream, and therefore their such acts have been illegal since September 27, 1952, and are now illegal.

The court finds that there is pollution of this small stream, that it comes from the wastes from the properties of the defendants, who have no prescriptive right to allow such wastes, causing the pollution, to enter this small stream, and further finds that the plaintiff, through whose land this small stream flows, has a right of action to enjoin these defendants from polluting this small stream in any way.

The court finds that the prayer of the plaintiff must be granted and an injunction ordered herein against the three defendants, each of them, from causing any pollution of this small stream.

The court therefore enjoins each defendant from allowing any wastes of any kind, coming within the description of “sewage” (R. C. 6111.01 [B]), and “other wastes” (R. C. 6111.01 [D]), to enter this small stream, which is one of the “waters of the state” (R. C. 6111.01[H]), which would result in “pollution” (R. C. 6111.01 [A]).

; And the court orders that the defendants, each of them, to so treat these wastes from their property so that the waters in this small stream, after their wastes enter it, are not “harmful or inimical to the public health, or to animal •or aquatic life, or to the use of such waters for domestic water supply, or industrial or agricultural purposes, or for ■recreation” (R. C. 6111.01[A]).

■ As the defendants will need some time to change the plan of disposal of their wastes that now flow into this small stream, the above order of injunction against each defendant shall be suspended for a period of 120 days, within which each defendant shall so change his waste disposal system that there can be no pollution of this small stream from his own waste disposal system, and the three defendants shall jointly so change the joint system that there can be no pollution of this small stream from the joint waste outlet into the small stream.

The defendants to pay the costs herein.  