Injunction, § 84 - against pollution of stream. 1. A building company which turns the sewage from houses constructed by it into a stream so as to increase the pollution of it, to the injury of a lower riparian owner, is subject to injunction. [See annotation on this question beginning on page 8.] Parties, § 96 municipal corporation - approval of drainage system. 2. That a municipal corporation has approved the plan of draining a subdivision of private property does not, in case it owns no part of the drainage system, render it a necessary party to a suit to enjoin injury to riparian property by the emptying of the drainage into a stream, although there is an understanding by which the municipality may eventually take over the drain as part of its general system. Parties, § 96 — effect of city's inspecting drainage system. 3. The general duty of a municipality to supervise and inspect sewers in the interest of the health of the community, and its approval and occasional inspection of a private drainage system, do not render it a necessary party to a suit to enjoin the own(Bond, Ch. J., and 46 A.L.R.-1. er of the stream from polluting a private watercourse by casting sewage into it. Parties, § 96 - effect of evidence. 4. Mere evidence that the enjoining of a sewer draining a private subdivision of a city would slow up sewer work throughout the city does not establish that the city has such an interest in the sewer as to render it a necessary party to a suit to enjoin pollution of a stream by the sewer. Injunction, § 17 effect of hardship from issuance. 5. That the enjoining of the turning of the drainage from a subdivision of a municipality into a stream would work great hardship on the owner of the subdivision, and on the owners of residences within it, will not prevent the issuance of an injunction against so doing. [See 9 R. C. L. 694; 27 R. C. L. 1232.] Parke, J., dissent.) APPEAL by plaintiff from a decree of the Circuit Court No. 2 of Baltimore City (Stanton, J.) in favor of defendant in a suit brought to enjoin it from emptying sewage into a stream of water flowing through plaintiff's land. Reversed. The facts are stated in the opinion of the court. Messrs. Lewis W. Lake and W. Calvin Chesnut for appellant. Messrs. George Arnold Frick and J. Charles Linthicum & Brother for appellee. Walsh, J., delivered the opinion of the court: This suit was brought by the appellant, the plaintiff below, to enjoin the appellee from emptying sewage in a stream of water which flows through the appellant's land at a point below where the sewage enters the stream. In 1915, the appellant purchased a tract of ground containing about 7 acres through which a stream of water known as Herring Run flows. This land at the time of its purchase was located in Baltimore county, but is now within the limits of Baltimore City by virtue of the Annexation Act of 1918, chap. 82. After purchasing it, the appellant moved on it with his family, and they have since all resided there. In 1919, the appellee bought a tract of land of about 30 acres situated at the southeasterly intersection of Herring Run and the Belair Road, which property is about three-quarters of a mile above the appellant's property, and at the time this suit was brought about 70 houses had been built on this land by the appellee, and sold by it to various private individuals, who were occupying them with their families, 12 other houses were practically completed, and all of the completed houses were connected, and the others were to be connected, with a sewerage system constructed by the appellee. It also appears that the appellee intended to continue. building additional houses; that these houses when built would likewise be connected with the existing sewers or extensions of them, and the sewage from all the toilets in these houses, as well as the waste water from bathtubs, kitchen sinks, and other sources would apparently be carried away by the sewerage system above mentioned. The sewer pipes were laid in the beds of certain streets and alleys on the land of the appellee, and the title to the beds of these streets and alleys was in the appellee. It further appears that the contents of this sewerage system flowed into a septic tank, and that the discharge from this tank emptied into Herring Run at a point. about three-quarters of a mile above the land of the appellant. After setting out the foregoing facts, none of which are successfully disputed, the bill of complaint alleges that the water being discharged from the septic tank is polluted and discolored with vegetable and animal matter, and with the refuse of kitchens, the waste water from bathrooms and sinks, and the overflow from cesspools, and the exhaust from toilets, and that as a result of this the banks of Herring Run, both at the point where the sewer empties into it and also where the run flows through the appellant's property, are covered with green scum and are marked with other deposits of an obnoxious nature, and that this pollution gives off a foul and disagreeable odor at all times, and especially during hot and dry weather. It is further alleged that all the water used in the houses built by the appellee is obtained from the Baltimore City water supply; that hence the drainage. from the sewer constitutes an unnatural addition to the volume of water flowing in Herring Run; that this increased volume has already changed the course of Herring Run and has caused it to flow in a newly created bed over the property of the appellant; that it is cutting away the banks of the stream on this property, and thus destroying the property; and that this destruction will increase as new houses are built and sold by the appellee and the volume of drainage from the sewer is thus enlarged. The bill finally alleged that prior to 1921 the appellant used his property as a pleasure resort; that people who visited him bathed in the water of Herring Run; that the water was clear, wholesome, and unpolluted, was inhabited with fish and used by cattle and geese for watering purposes, and was of great value to the appellant in the use and enjoyment of his property; but that since 1921 it has been polluted and unfit for any use, and that because of this pollution large swarms of flies and gnats had appeared and infested the entire property of the appellant; that these conditions were steadily growing worse; and that they constituted a taking of the appellant's property, solely for the financial benefit of the appellee, and so entitled the appellant to an injunction restraining the appellee from committing the wrongs complained of. The appellee, the Broring Building Company, demurred to the bill on the ground that it did not show any cause for equitable relief, and also on the ground that the bill showed on its face that there were additional parties interested in the subject-matter of the suit who should have been made parties to it, and on the demurrer being overruled it answered admitting the ownership and development of the land mentioned in the bill, but disclaimed any responsibility for the sewerage system, and alleged lack of knowledge of the condition of Herring Run complained of in the bill. The appellee's contention that it is not responsible for the sewerage system is based on the fact that the system was constructed in accordance with plans and specifications prescribed by the mayor and city council of Baltimore, and the further fact that it has contracted to convey this sewerage system to the mayor and city council of Baltimore, free of cost, whenever that municipality desires it to do so, and the further fact that it does not own any of the houses from which the sewage comes, it having sold all the houses which are now occupied. It appears from the record that the city of Baltimore in 1901 began the construction and development of a comprehensive sewerage system for the entire city, and that the system is being extended to new developments within the city limits as rapidly as the funds available for that purpose will, from time to time, permit. The acquisition of that part of Baltimore county which was added to the city by the Annexation Act of 1918, together with the rapid expansion and development of the city in other directions, has rendered it impossible, with the funds available, to extend and expand the city sewerage system with sufficient rapidity to at once take care of the Annex and the newer developments, and to cope with this situation the city devised the plan of refusing to grant building permits for the erection of houses in localities which were without city sewerage facilities, unless a private sewerage system, approved by the city, was provided for the houses to be built. The idea underlying this plan was: First, that the health of the community would be preserved by requiring the installation of approved sewerage systems; and, secondly, that these private sewerage systems, having been built in accordance with plans approved by the city and being in keeping with the city's own sewerage system, could be added to that system as its trunk lines and other facilities were gradually extended throughout the more recently developed sections of the city. Mr. Milton J. Ruark, division engineer of sewers for the city of Baltimore, testified that it was the established policy and practice of the city to require persons desiring to develop land in the Annex to secure plans for the sewerage system from the city, or to have the city approve the plans of the developers; that the sewers were then built in accordance with such plans, and eventually, as the sewerage system of Baltimore City was extended into the new ter APPEAL by plaintiff from a decree of the Circuit Court No. 2 of Baltimore City (Stanton, J.) in favor of defendant in a suit brought to enjoin it from emptying sewage into a stream of water flowing through plaintiff's land. Reversed. The facts are stated in the opinion of the court. Messrs. Lewis W. Lake and W. Calvin Chesnut for appellant. Messrs. George Arnold Frick and J. Charles Linthicum & Brother for appellee. Walsh, J., delivered the opinion of the court: This suit was brought by the appellant, the plaintiff below, to enjoin the appellee from emptying sewage in a stream of water which flows through the appellant's land at a point below where the sewage enters the stream. In 1915, the appellant purchased a tract of ground containing about 7 acres through which a stream of water known as Herring Run flows. This land at the time of its purchase was located in Baltimore county, but is now within the limits of Baltimore City by virtue of the Annexation Act of 1918, chap. 82. After purchasing it, the appellant moved on it with his family, and they have since all resided there. In 1919, the appellee bought a tract of land of about 30 acres situated at the southeasterly intersection of Herring Run and the Belair Road, which property is about three-quarters of a mile above the appellant's property, and at the time this suit was brought about 70 houses had been built on this land by the appellee, and sold by it to various private individuals, who were occupying them with their families, 12 other houses were practically completed, and all of the completed houses were connected, and the others were to be connected, with a sewerage system constructed by the appellee. It also appears that the appellee intended to continue building additional houses; that these houses when built would likewise be connected with the existing sewers or extensions of them, and the sewage from all the toilets in these houses, as well as the waste water from bathtubs, kitchen sinks, and other sources would apparently be carried away by the sewerage system above mentioned. The sewer pipes were laid in the beds of certain streets and alleys on the land of the appellee, and the title to the beds of these streets and alleys was in the appellee. It further appears that the contents of this sewerage system flowed into a septic tank, and that the discharge from this tank emptied into Herring Run at a point about three-quarters of a mile above the land of the appellant. After setting out the foregoing facts, none of which are successfully disputed, the bill of complaint alleges that the water being discharged from the septic tank is polluted and discolored with vegetable and animal matter, and with the refuse of kitchens, the waste water from bathrooms and sinks, and the overflow from cesspools, and the exhaust from toilets, and that as a result of this the banks of Herring Run, both at the point where the sewer empties into it and also where the run flows through the appellant's property, are covered with green scum and are marked with other deposits of an obnoxious nature, and that this pollution gives off a foul and disagreeable odor at all times, and especially during hot and dry weather. It is further alleged that all the water used in the houses built by the appellee is obtained from the Baltimore City water supply; that hence the drainage from the sewer constitutes an unnatural addition to the volume of water flowing in Herring Run; that this increased volume has already changed the course of Herring Run and has caused it to flow in a newly created bed over the property of the appellant; that it is cutting away the banks of the stream on this property, and thus destroying the property; and that this destruction will increase as new houses are built and sold by the appellee and the volume |