Mary Luther and Ralph Luther and Mary Luther, as Coexecutors, etc., of Asa A. Luther, Deceased, Respondents, v. The Village of Batavia, Appellant

Mary Luther and Ralph Luther and Mary Luther, as Coexecutors, etc., of Asa A. Luther, Deceased, Respondents, v. The Village of Batavia, Appellant. Fourth Department, July 7, 1915. Waters and watercourses"— public health —liability of village for polluting stream — injunction— contempt. Where a city or village permits its sewer system to pollute a living stream and damage results to riparian owners, it must respond in damages. If such acts are continued an injunction may issue, and if the village persists in defiance of the injunction, it and the local authorities responsible should be punished for contempt. The fact that it may be 'difficult for a community to take care of its sewage, except by allowing it to flow into a stream of water, offers no justification or excuse for damaging riparian owners. Where it is established that the water of a stream became contaminated with offensive refuse matter from village sewers, that is, was covered with a scum, gave, off at times offensive odors, became so filthy that cattle would not drink of it, that fish died, and the odor caused discomfort and annoyance to a riparian owner, he is entitled to damages. Appeal by the defendant, The Village of Batavia, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Genesee on the 6th day of June, 1914, upon the report of a referee appointed to hear and determine the issues. Newell K. Cone, for the appellant. George W. Watson, for the respondents. [MAJORITY — Kruse, P. J.:] Kruse, P. J.: The inhabitants of a city or village, collectively, have no more right to pollute the waters of a stream than a single individual, and where a city empties its sewer system into a living stream, as the defendant has done in this case, and damage results to the riparian owners, it must respond in damages. If such acts are continued and a proper case is made out, an injunction should issue restraining such unlawful acts; and if the village persists in defiance of the injunction, the village and local authorities responsible for such violation should be punished for contempt. That happened to this defendant not so long ago. (Swezey v. Village of Batavia, 121 App. Div. 926; affd., 191 N. Y. 499.) It may be difficult for some communities to take care of the sewage in any other way than was done here, but that affords no justification or excuse for harming others who are situated as were the plaintiffs. Perhaps this warning applies more to others than to this defendant, as we understand that other provision has now been made by it for taking care of its sewage. It is unnecessary to take up the various points in detail which have been urged for reversal of this judgment. I think the evidence fairly shows, as the plaintiffs contend, that the waters of this stream became contaminated with offensive refuse matter from the sewers; that the waters of the stream were covered with a scum, gave off at times offensive odor, became so filthy that the cattle would not drink of it, and that the fish died, and that the filthy odor of the creek caused discomfort and annoyance to the plaintiffs, thus decreasing the rental value of their premises. I am further of the opinion that the damages awarded are not .excessive and that no error ivas committed so prejudicial to defendant as to require or justify a new trial. The judgment should be affirmed, with costs. All concurred. Judgment affirmed, with costs.