Wilson v. Arecibo. the acts complained of amount to an actual taking of his property, or a direct invasion of his property rights without just compensation or due process of law, the remedy by injunction will lie. 3. Even the legislative assembly cannot authorize a municipality to erect or maintain a nuisance, and if a nuisance is being maintained from which the complainant is suffering special injury, his right of action accrues. 4. A court of equity has jurisdiction to examine into the whole question, with a view to enjoining the nuisance and affording relief in the way of damages in the same suit, when, by reason of the circumstances, a suit at law would afford inadequate relief. 5. Where, upon a careful reading of a complaint, the court is convinced that it cannot intelligently pass upon the issues between the parties without having all the facts before it, it will enter an order overruling the demurrer, reserving all questions of jurisdiction. Opinion filed December 10, 1906. Messrs. Horton & Cornwell, solicitors for complainant. F. H. Dexter, Esq., solicitor for defendant. RODEY, Judge, delivered the following opinion: The complainant, alleging himself to be a citizen of the King of Great Britain, residing in Porto Rico, files his bill herein to enjoin the defendant, a municipality of Porto Rico, from maintaining a nuisance, because of the maintenance of which he has suffered special damage; and, in addition, to obtain a money decree for the injury. The alleging and charging part of the bill is as follows: Note.-Injunction against a nuisance maintained by a municipal corporation, see note to Atlanta v. Warnock, 23 L.R.A. 301; duty and liability of municipality as to drainage, see note to Georgetown v. Com. 61 L.R.A. 673. Wilson v. Arecibo. "That your orator, in the year 1863, acquired by purchase the estate in fee of the following described piece or parcel of land containing one cuerda, more or less, situate in the municipality of Arecibo, Porto Rico, improved with a repair shop and foundry with all its tools and instruments, together with a one-story frame house. "All the above situated in the city of Arecibo, fronting upon Utuado street, and bounded on the east by the house and land of Joachin Masnan, on the north by the highway which leads to the town of Utuado, on the west by the succession of Ulanza, on the south by the creek "Peadomo;" and that your orator ever since has been, and now is, the owner in fee of the abovedescribed property. That since your orator purchased the said property, as aforesaid, he has made additional valuable and permanent improvements on same, consisting of a large and costly house of residence in which your orator, together with his family, resided up and until the wrongful acts of the defendant hereinafter to be set forth. That your orator also enlarged and remodeled the foundry and repair shop upon the said premises and made other valuable improvements upon the said property. That the value of said repair shop and foundry is about $20,000, and that the value of said house and piece of land is about $6,000. "That from the said property your orator and his family had enjoyed for years the greatest comfort, pleasure, support, and maintenance without hindrance. That running at the north and in front of your orator's premises, at a distance of about 30 meters from your orator's house and foundry and workshop, is a stream or river known as the Santiago river, and at the back and at the sides of your orator's premises there runs a stream or river known as the "Peadomo" river, which bounds Wilson v. Arecibo. your orator's premises as aforesaid upon the south. That the said Santiago river and Peadomo river have their junction or confluence at a distance of about 200 meters below the house and workshop of your orator. "That the said two streams or rivers were streams of fresh water which contributed greatly to the pleasure, comfort, health, and support of your orator and his family. That in the early part of the year 1903, while your orator and his family were in the quiet enjoyment of the said premises as aforesaid, the defendant, the municipality of Arecibo, did commence to construct a system of public sewers, pipes, and connections with the main sewers and lateral sewers. That in the said projected system of sewers the sewage from the city of Arecibo was to be discharged into the Santiago river by four sewer pipes at points on the opposite side of the river from the premises of your orator, ranging from a distance of 30 meters to a distance of 200 meters from the house and workshop of your orator. That your orator at once, upon learning of the proposed plan of sewers, and before the said pipes were laid, duly protested and petitioned the alcalde and city council of Arecibo, and also protested to the board of health of Porto Rico against the discharge of sewage into the Santiago river in the vicinity to your orator's premises as aforesaid. "That in the month of June, 1903, the wife of your orator went to San Juan and made a protest in person before Dr. William Fawcett Smith, then the director of health for Porto Rico, at which time the said Dr. William Fawcett Smith assured the wife of your orator that the sewage from the city of Arecibo would not be discharged into the Santiago river, but would be discharged at some other place. That notwithstanding this assurance, the defendant, several months thereafter, re Wilson v. Arecibo. sumed the construction of said sewerage system, and did lay its main pipes so that the sewage would be discharged by four main pipes as aforesaid into the Santiago river in the vicinity of the premises of your orator, and that the said defendant did connect the said sewerage system with various and sundry public buildings, business houses, residences, privies, sinks, and cesspools in the municipality of Arecibo, from which said sewerage system did receive all the filth, slops, excrement, urine, and foul and offensive putrid matter connected with the said buildings, privies, sinks, and cesspools. And that the said defendant, by means of the said sewerage system, its mains and pipes, did cause to be discharged into the Santiago river immediately opposite to the premises of your orator, by four pipes as aforesaid, all of the said filth, slops, excrement, urine, and foul and offensive matter. "That there is little or no current in the said Santiago river at its confluence or conjunction with Peadomo river, nor is there hardly any current in the said Peadomo river at said confluence, so that the said filth, slops, excrement, urine, and foul and offensive putrid matter, instead of passing down the river, becomes stagnant upon the surface of the water in the said Santiago river, and said current is part of the time reversed on account of tides of the sea, so that part of said filth, slops, excrement, urine, and foul and offensive putrid matter is backed up into the Peadomo river at the side and at the back of your orator's premises, thus causing in front, at the side, and at the back of your orator's house and at the workshop or foundry of your orator, the said filth, slops, excrement, urine, and foul and offensive putrid matter to remain in and upon the water, and, by the rise and fall of the waters in said rivers, to be deposited upon the land in the immediate vicinity in front, Wilson v. Arecibo. at the back, and at the side of your orator's residence and workshop. That by reason of such deposits of filth, slops, excrement, urine, and foul and offensive putrid matter and of the sewer gas and pollution arising at and from the said sewage as aforesaid being carried by the winds and drawn by the sun upon and around your orator's residence and workshop, and by the creation of the germs and disease both upon the land and in the water in the immediate vicinity of said residence and workshop, that your orator and his family, his servants and employees, were deprived of the pleasure, comfort, and enjoyment of said premises, the same being a constant menace to their pleasure, comfort, health, and lives, keeping them in constant dread of sickness and disease, and depriving your orator of the use and benefit of the said rivers. "That your orator renewed his protest and petition to the municipality of Arecibo and to the insular department of public health, and also appealed to the secretary of Porto Rico and to the acting governor of Porto Rico, but without avail. That in the summer of 1904 the stench, foul and sickening odors caused by said sewage as aforesaid about the residence of your orator became so unbearable that your orator's family became sick and ill, so that it was necessary for your orator to send them to the city of San Juan that they might remain there for medical assistance and until your orator might procure and make ready for them another home or place of residence in the municipality of Arecibo and away from the said stench and foul odors caused by the said sewage as aforesaid. That in the fall of 1904, one of your orator's nephews, who was living with your orator on the said premises, became sick and died by reason of the said foul and sickening odors. "That about the month of January, 1905, on account of com |