Opinion
No. 4392.
December 2, 1932. Rehearing Denied December 15, 1932.
Appeal from District Court, Titus County; R. T. Wilkinson, Judge.
Action by the Texas Milk Products Company for an injunction against the City of Mt. Pleasant. From an order denying preliminary injunction, plaintiff appeals.
Reversed and remanded, with instructions.
The appeal is from an interlocutory order made in vacation denying to appellant a preliminary injunction against the city of Mt. Pleasant, to prevent disconnecting the milk plant from the sewer system of the city. The action was for the purpose of a preliminary and a perpetual injunction restraining the enforcement of the resolution, namely:
"A resolution providing that the Texas Milk Products Company of Mt. Pleasant be required to properly pre-treat its sewage waste before emptying into the Mt. Pleasant sanitary sewer system in compliance with said City's plumbing code: And further providing that unless said sewage waste is being properly pre-treated by September 3rd, 1932, that on said date said company will be cut off from the said City's sanitary sewage system and providing that notice thereof being given forthwith by said City's Secretary.
"Whereas, the Texas Milk Products Co. of Mt. Pleasant, Texas, is an industrial or manufacturing concern which discharges sewage waste including a high acid content and of such nature that same is highly detrimental to the sewer disposal plant of the sanitary sewage system of the City of Mt. Pleasant, Texas; and
"Whereas, under the provisions of said City's plumbing code, such sewage waste must be pre-treated properly before being discharged into said sanitary sewage system; and
"Whereas, the Texas Milk Products Company of Mt. Pleasant, Texas, is obligated by contract to cut off, or be cut off from the use of the said City's sanitary sewage system at such time as the City Council for said City in its judgment decides that the sewage waste being discharged by said Milk Plant is being detrimental to the said disposal plant; and notice of 15 days thereof is so given; and
"Whereas, the said City Council believes and knows that the waste from said Milk Plant is highly detrimental to the said City's disposal plant, and has become so injurious that all of the City's sewage waste is not being by-passed around the said City's disposal plant.
"Now, Therefore, Be It Resolved by the City Council of the City of Mt. Pleasant, Texas, that due to the injurious effect upon the sanitary sewage system of said city and its disposal plant caused by the waste from the Texas Milk Products Company's plant in said City being discharged into said sewer system without being properly pre-treated, that same must be pre-treated before emptying into said City's sewer system in a proper manner, and plans for such pre-treatment must first be submitted to the said City, all as provided by said City's plumbing code; and unless said waste is being so pre-treated within 30 days from date hereof then the City Engineer of said City shall cut off and disconnect said Milk Plant from the said City's sanitary sewage system; and that notice hereof shall be given by the City Secretary of said City forthwith to the said Texas Milk Products Company of Mt. Pleasant, Texas.
"Dated this the 2nd day of August, 1932."
The appellant operates a milk plant in the city of Mt. Pleasant on property of its own. They buy whole sweet milk, and from that take the cream and make butter. The skim milk is run through high temperature and the water evaporated from it, leaving a powder. The milk is brought to the plant in cans containing from five to ten gallons of milk each. These cans, after being emptied of the milk, are washed out, first, by cold water and then by hot water, and then treated with steam and hot air. They are washed with a compound used for dairy purposes of a strong alkali similar to soaps, but without any acid properties. The milk vats are washed out every day and whatsoever of milk or cream that hardens and adheres to the vats. The water and substances are drained into the sewer pipe and what is termed the grease trap. The grease trap is a device located outside the plant, and is about six feet square by ten feet deep, and is used to remove the grease and cream that may be collected on the water. After this cleaning, the water goes into the sewer pipe. As testified:
"None of the grease that collects there and hardens gets out into the sewer. There is nothing only the water in washing out the vessels, churn and butter room that goes out of the milk plant that goes into the sewer plant."
As shown by the witness, there are no corrosive liquids or spent acids of any kind of waste discharged into the sewer system that is detrimental to the sewer system. The following provision of the sanitary code of the city, as pleaded, is: "Where building or structure discharges any corrosive liquids or other spent acids of any kind of waste in such quantities to be detrimental to the sanitary sewer system the owner or agent of building or structure will be required to make proper arrangements for the treatment of said waste before discharging into the sanitary sewers — plans for such treatment must be submitted to the City Engineer for his approval."
The milk plant uses on an average about 500,000 gallons of water per month, all of which is cast into the sewer.
The appellee is a city of about 3,500 inhabitants, and has constructed and maintains a city-owned sanitary sewer system equipped with a sanitary disposal plant or tank with outlet into a running stream. The septic tank is of the pattern known as "The Globe Degassifying System." The plant was designed to take care of domestic sewage for not more than 5,000 people. The appellee claims that the effect of the use of the sewer system by the appellant was to add to and overload its capacity, and, because of the content of the sewage, prevented the functioning of the bacterial action required in its disposal or putrefaction tank or vats; that the quantity of sewage output from the milk plant overloaded and prevented the tank or system from destroying the unhealthful and nuisance-creating elements and contents with the result of emptying into the drainage way receiving it the unhealthful and nuisance-creating effulgent. An agreement, signed by appellee and appellant, was offered in evidence by appellee to the effect that the Texas Milk Products Company, if granted a permit by the city of Mt. Pleasant to tie on to the sewage system, would pre-treat said waste so that no detriment would be done; and would disconnect therefrom at any time that the said waste seriously injured the said septic tank and interfered with service ordinarily given before said plant tied on thereto. The appellant claims that the agreement was without consideration, ultra vires, and discriminatory against it, and the subject-matter was not violated.
The court entered findings of fact, namely: (1) That the sewage from the milk plant contains matter that enters into and impairs the usefulness of the sewer system of the city, in that the system becomes overloaded and cannot perform its functions, and the sewage does not and cannot undergo such chemical treatment as will render it harmless, and that "a nuisance is thereby created by the sewage plant which will be injurious in all probability to the health of the citizens of Mt. Pleasant and the territory adjacent thereto where the effluent of the sewer system empties"; (2) that there is no damage or destruction of the physical properties of the sewer system from the sewage waste of the plaintiff; (3) that the waste of the plaintiff after being properly pre-treated before being discharged into the sewer mains will not contain any more deleterious matter than the usual domestic sewage.
J. A. Ward, of Mt. Pleasant, for appellant.
Hiram G. Brown and Seb F. Caldwell, both of Mt. Pleasant, for appellee.
The appellee urges that a temporary injunction should be denied, as was decided by the court, because it conclusively appears "from the facts of the case that appellant's sewage was seriously injuring its plant and would destroy its use altogether and cause the City to be guilty of creating a nuisance in contaminating and polluting the stream into which the sewage was being discharged" The appellant, on the other hand, contends in effect that it has shown a right to a preliminary injunction preventive of a disconnection from the sewer system during the pendency of the suit in which the fights to it are to be finally decided.
It is not at all doubted that the right of a municipality to regulate and control the use of its sewers legally exists as a necessary incident of their ownership. The simple question here is that of whether or not it is clear that the complainant plaintiff does not have the right that it claims to a temporary injunction for the particular purpose for which it is sought. The trial judge expressly found as a fact that "there is no damage or destruction of the physical properties of the server system from the sewage waste of the plaintiff." In substance, the finding means that there were not discharges from appellant's plant into the sewers of "any corrosive liquids or other spent acids" in quantities to be detrimental to the sanitary sewer system. In view of the finding so made, it may not be said in this case that there was shown a violation by appellant of the provisions of the sanitary code, as same was pleaded, requiring the need of immediate disconnection of appellant from the use of the sewer. There would be wanting in this respect any physical injury to the property rights or the property itself of the city in disturbance of the exercise of the legal right of the city of control and regulation or protection of the sewer system. And looking further into the evidence it may not properly be held, we conclude, that other very special circumstances so conclusively appear as may suffice to stop relief by temporary injunction against the act of disconnection from any use of the sewer system. Equity will not authorize a disconnection on the ground that the sewer is overloaded and with hurtful and deleterious matter affecting its proper and sanitary use where the evidence is not without a probability that appellant may finally maintain his right of use as against that of the appellee. At least an open issue of fact arises from all the evidence. The following quotation is made from 32 C.J. § 2, p. 20, as illustrative of the extent of the present ruling in this case, viz.: "An interlocutory or preliminary injunction is a provisional remedy granted before a hearing on the merits and its sole object is to preserve the subject in controversy in its then existing condition, and without determining any question of right, until a full and deliberate investigation of the case is afforded by the party. This is so whether the injunction is prohibitory or mandatory. Distinguished characteristics of injunctions of this class are that they do not conclude the rights of the parties and that their issuance is not dependent on a hearing on the merits. But the court will interfere to preserve the property in status quo during the pendency of a suit in which the rights to it are to be decided; and that without expressing and often without having the means, of forming an opinion as to such rights."
The order of the district court is therefore reversed, and the cause will be remanded, with instructions to continue the preliminary injunction during the pendency of the suit.
BLALOCK, C.J., has entered his disqualifications, and did not sit in the determination of the appeal