Lucas County.

common parliamentary law of this country, to reconsider a vote already passed, whether affirmatively or negatively.

"For this purpose, a motion is made and seconded in the usual manner that such a vote be reconsidered; and, if this motion prevails, the matter stands before the assembly in precisely the same state and condition, and the same questions are to be put in relation to it as if the vote reconsidered had never been passed. Thus, if an amendment by inserting words, is moved and rejected, the same amendment cannot be moved again; but, the assembly may reconsider the vote by which it was rejected, and then the question will recur on the amendment, precisely as if the former vote had never been passed.

"It is usual in legislative bodies, to regulate by a special rule the time, manner, and by whom, a motion to reconsider may be made; thus, for example, that it shall be made only on the same or a succeeding day, by a member who voted with the majority,-or at a time when there are as many members present as there were when the vote was passed; but, where there is no special rule on the subject, a motion to reconsider must be considered in the same light as any other motion, and as subject to no other rules."

And I read from Smith, Munic. Corp. Sec. 307:

"It is the undoubted right of corporate bodies, unless clearly restrained by legislative enactment, to reconsider a vote as often as they see fit, or to rescind the same, provided vested rights are not disturbed, up to the time when by a conclusive vote, accepted as such by itself, a determination has been reached. They may adopt rules as to the time when reconsideration may be moved; and it is not necessary to the validity of a resolution to reconsider that it should be moved by one who voted originally with the majority; and a board of aldermen which has indefinitely postponed action on a resolution of the common council can afterwards rescind that action and pass the resolution."

There is more, in the succeeding section upon the same subject.

It is urged on behalf of plaintiffs that there is some difference where the legislative authority is vested in two tribunals, as here-a board of aldermen and a board of councilmen-and their concurrence is required for the adoption of a resolution or the passage of a law; but we cannot see that this is so; we cannot understand upon what principle it would be so, unless in the meantime-between the time that the action is taken and the reconsideration-the other body has taken some action in the premises or has done something with which such subsequent action is inconsistent.

Adkins v. Toledo.

The case of Hough v. Bridgeport (City), 57 Conn. 290 [18 Atl. Rep. 102], seems to be in point. I read from the syllabus:

"A resolution laying out the street having passed the lower house of the common council came to the board of aldermen. By law it was necessary to the validity of the lay-out that the aldermen should concur in passing it. They indefinitely postponed the resolution and at a later meeting rescinded that action and passed the resolution. Held to be a legal concurrence.'

And we think that other authorities cited in the brief are in point. We find no authority laying down a different rule based upon the circumstance that there are two bodies to act that must concur upon the resolution or action in question. Hence we believe and hold that the action of the council in the premises was valid; that it was not necessary to ask for the reconcurrence of the aldermanic body in order to legally proceed upon the resolution; and so holding, and there being no other fault found with this proceeding, and no fatal fault therein that we can discover, we hold that the action of the city authorities in the premises was legal and valid and that the assessments must stand. The petition of the plaintiffs will be dismissed, at their costs.

Hull and Haynes, JJ., concur.

SEWERS-ESTOPPEL-WATERS AND WATER COURSES

ASSESSMENTS.

[Lucas (6th) Circuit Court, February 27, 1905.]

Hull, Haynes and Parker, JJ.

SAMUEL HILDEBRAND V. TOLEDO (CITY) ET AL.

1. OBJECTION THAT SEWER IS NOT AVAILABLE TO CERTAIN PROPERTY NOT SUSTAINED,

WHEN.

An objection by an abutting property owner to a sewer assessment, based upon the ground that the sewer is not available to his lots, is not sustained where the proof shows that the lots for a distance of from fifteen to fifty feet back towards their rear, are on a level with the grade of the street in which the sewer is built, from which points they descend from forty to sixty feet to a river bounding them on the rear, and the sewer is from fifteen to seventeen feet below the surface of the street and it also appears that with respect to several of the lots the houses and improvements thereon are so built as to permit the carrying off of sewage even at cellar levels through such sewers.

2. PETITIONING FOR SEWER DOFS NOT ESTOP PETITIONER FROM CONTESTING VALIDITY OF ASSESSMENT, WHEN.

The mere fact that an abutting property owner petitioned for a sewer improvement, and stood by without objection or protest and saw it built, does

Lucas County.

not estop him from thereafter contesting the validity of the assessment against his property to pay the costs thereof, on the ground that his property is not specially benefited thereby.

3. FAILURE TO PREVENT POLLUTION OF WATER DOES NOT ESTOP CITY FROM BUILDING SEWER, ETC.

The fact that a municipality owning lands abutting on a stream has not taken wholly effective measures in all cases to prevent the pollution of water thereof which goes into its waterworks system, will not hinder or prevent it from taking measures, such as by building a sewer, to divert the sewage to another course; nor will such fact prevent the collection of an assessment, levied against the property specially benefited by such sewer, to pay the cost thereof.

4. RIGHT TO POLLUTE WATER COURSE NOT PART OF RIPARIAN RIGHTS.

The right to pollute the waters of a natural water course forms no part of the riparian rights of the abutting owners; and, in order to prevent such pollution, it is not essential that a municipality, or other riparian owner who is affected thereby, should condemn any right which such abutting owner may have or claim in the water.

5. MUNICIPALITY GUILTY OF POLLUTING STREAM NOT ESTOPPED FROM PREVENTING POLLUTION BY OTHERS, ETC.

A municipal riparian owner is not estopped from exercising its right and power to prevent the pollution of a natural water course, simply, because it has been guilty of the same offense by emptying its sewage into the stream. Hence, the collection by a municipality of an assessment, to pay the cost of constructing a sewer to carry off sewage which otherwise would be drained into the stream, cannot be enjoined merely because the municipality had also emptied its sewage into the stream.

6. ADEQUATE LOCAL DRAINAGE MUST HAVE PERMANENCY OF STRUCTURE AND of ConTROL, ETC.

Lots are not provided with adequate local drainage, such as will exempt them from paying their share of an assessment levied to pay the cost of a sewer improvement, unless the right exists to dispose of sewage as it is at the time being disposed of, and the right to so continue is one that cannot be interfered with; the present right must include not only the idea of permanency of structure, but also of control. Hence, a claim of adequate local drainage, based upon the right to allow sewage to drain into a natural water course running through a municipality, is not sustained, where such drainage will pollute the stream and create a nuisance, and imperil the health of other riparian owners.

APPEAL from Lucas common pleas court.

C. W. Everett and M. D. Merrick, for plaintiff.

U. G. Denman and F. D. Crane, for defendant.

PARKER, J.

A large number of persons join here as plaintiffs, and they bring their action to obtain relief from assessments laid upon their lands and lots on account of a sewer in this city. The action was begun in the court of common pleas and is in this court upon appeal. Their lots and lands are described in the petition, and it is only necessary to say with respect to their location, in a general way, that they lie along the bank of the Maumee river in the upper part of the city of Toledo in the

Hildebrand v. Toledo.

vicinity of where the waterworks standpipe and power house, etc., stand, extending from along in that vicinity up the river; and at about that point the water which is supplied to said city by an intake pipe, is taken from the Maumee river. These are all so-called "river lots;" they face upon Broadway and extend from Broadway back to the river, the owners of said lots having the ordinary riparian rights attaching to lots and lands along the river. The sewer on account of which their lots and lands are assessed, begins in Broadway and extends along the fronts of their lots until it connects with another sewer by which the sewage is carried in a northwesterly direction until it empties into Swan creek. By Swan creek it is brought down a distance of perhaps three miles or less, into the Maumee river at a point three miles below the waterworks plant or power house. The sewer at the front of these lots is from sixteen to seventeen feet below the street grade. The greater part of each of these lots is below the street grade. The depth of the lots upon the street grade, that is to say at the same elevation as the street grade, varies from fifteen to fifty feet and it appears that all of the lots have parts that abut upon the street that have as great an elevation as the street grade. From these points-from fifteen to fifty feet back from the street-the lots descend from forty to sixty feet with more or less abruptness to the water, and the whole depth of each of the lots is from 150 to 250 feet.

No fault is found with the proceedings except in the matter of the laying of the assessments. No complaint is made of any irregularity in the proceedings affecting the validity of the assessments, but it is claimed that no part of the costs of this sewer may be rightfully laid upon these river lots, for several reasons:

First. Because they have "sufficient natural drainage and sewerage into said river," and under the statute original Sec. 2380 (repealed 96 O. L. 96; see Lan. R. L. 3604; B. 1536-213; 96 O. L. 40, Sec. 53), where a lot has sufficient natural drainage, it cannot be assessed for artificial drainage.

Second. Because the sewer is not available to these lots, it being laid at too high a level above these lots to make it possible for these lots to use it for the disposal of their drainage.

The attack is upon the assessment in toto. If any part may be sustained, it is not shown nor contended that the amounts levied are too large.

Disposing of the second claim, i. e., that the level of the sewer is laid too high to be available to these lots, the proof shows that the fronts of the lots, as I have said, on the street, for a distance of from fifteen

Lucas County.

to fifty feet back towards their rear, are on a level with the grade of the street; that from this point they descend to the river, so that it is apparent that these parts of the lots so on the level of the street, are from sixteen to seventeen feet above this sewer, and, therefore, they are in a situation so that they could use this sewer for sewage. In the case of many of these lots the houses and improvements upon them are built towards the fronts of the lots and on levels permitting of the carrying of sewage from closets, etc., even at cellar levels, into this sewer, and, therefore, they cannot escape all the burdens of the costs of this sewer on the ground that the sewer cannot be used for them; and, as before stated, if any part of the assessment may be upheld, it is not shown that the amounts levied are excessive; there is no claim of that kind made and no evidence submitted that would enable us to consider it if the claim were asserted; so that we find and hold that the plaintiffs have failed to sustain that ground of relief.

There remains the other ground, i. e., that they have and always have had, sufficient natural drainage or sewerage; and this they assert with respect not only to the parts of lots which lie on the side of the hill, but with respect to the parts that are at as high or higher levels than the street grade.

This allegation of fact the city denies. It is conceded by the city that the property lies so that it may be readily drained into the river and so that its sewage may be readily disposed of by emptying the same into the river; but the city insists that the rights of the proprietors to thus dispose of their sewage is qualified by the rights of the city and the community and persons having riparian rights in and to the river and especially of the lower proprietors, to have the stream kept pure, and by the right and power of the city in the exercise of its police and governmental power to prevent the putting of anything impure into the river that may contaminate or render unwholesome the water supply of the city; and the city contends that the plaintiffs' right to cast impurities into the stream, as thus qualified and subject to control and even prohibition, does not amount to adequate means or facilities for sewerage, within the purview of the statute.

And the city further says that in this particular instance the casting of sewage from these lots into the river will contaminate the water so near to the intake of the waterworks system whereby water is furnished to the residents of the city for drinking and culinary purposes, that such water will be rendered impure and unwholesome, and that part of the purpose and design of the city in diverting this sewage and other sewage that may originate on these lots and in that locality, to Swan