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Fink v. Board of Trustees of Southern Ill. Univ.

JUNE 16, 1966.

LEROY M. FINK AND CLARENCE W. BOHM, PLAINTIFFS-APPELLEES,

v.

THE BOARD OF TRUSTEES OF SOUTHERN ILLINOIS UNIVERSITY, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Madison County; the Hon. JOSEPH J. BARR, Judge, presiding. Judgment affirmed.

EBERSPACHER, J.

Rehearing denied July 26, 1966.

Plaintiffs brought suit to enjoin construction of a dam upstream on an intermittent watercourse which flows past their property. They also sought to enjoin defendant from discharging sewage effluent from their sewer treatment plant into said watercourse. Plaintiffs further sought to have their attorney fee expense taxed as costs. The trial court, after hearing, denied the injunction as to the construction of the dam and denied attorney fees. From this order plaintiff appeals. The trial court did enjoin the discharge of sewage effluent and from this order defendant appeals.

Defendant is in the process of constructing a university campus upstream from plaintiffs' property. As part of the construction, defendant has placed a dam across one branch of the watercourse to impound a lake. The lake water will be used for heating and cooling and recreation purposes. Below the lake about 900' from plaintiffs' property a sewer treatment plant has been constructed.

The only complaint concerning the construction of the dam is that it would reduce the flow of water through plaintiffs' property. The dam will impound water on one of two branches of the watercourse and only such quantities from that source as go over the spillway will henceforth flow past plaintiffs' land. However, there is evidence that the flow from the other branch of the watercourse will be increased as a result of construction of asphalt parking areas and other construction which increases the runoff.

All testimony shows that flow in the watercourse is intermittent. Plaintiffs do not use the water for drinking or household purposes. The loss, if any, to the plaintiffs by any decrease in the flow is minimal. On the other hand, the benefits to defendant from construction of the dam are substantial. Under these circumstances the refusal to enjoin construction of the dam was proper. Haack v. Lindsay Light & Chemical Co., 393 Ill. 367, 66 N.E.2d 391; Clark v. Lindsay Light & Chemical Co., 341 Ill. App. 316, 93 N.E.2d 441.

Allowance of attorney fees is the exception rather than the rule. No special circumstances justifying their allowance was shown and hence denial of attorney fees was proper. Ritter v. Ritter, 381 Ill. 549, 46 N.E.2d 41.

The granting of the injunction against the discharge of sewage effluent presents the serious question involved in this appeal. A review of the evidence in regard to this question is necessary.

Two engineer representatives of the firm which planned the sewer system for defendant testified that two alternatives for the disposition of the sewage effluent from the sewage treatment plant were considered. One was the method which the defendant is presently endeavoring to employ, that is, to spill the effluent into the intermittent watercourse after chlorination treatment, and the other was to construct an outfall sewer line so that the effluent will be carried to Cahokia Creek, thence to the diversionary channel and to the Mississippi River. These engineers had recommended the outfall sewer line and that was still their recommendation at the time of trial.

There was testimony that in the initial phase a maximum of 1,000,000 gallons of effluent per day would be emptied into the stream and, later, in the second phase, 2,000,000 gallons per day. This discharge would not be at a constant rate; there would be peak periods during the day when the volume of flow would be comparable to the discharge from seven fire hoses operating at capacity.

The testimony shows that the effluent will be clear, odorless, of low bacteria content, and within the standards established by the State Sanitary Water Board as long as the sewage treatment plant operates properly. There was testimony that on occasion an operational failure of the plant occurs. Failure of the sewage treatment to operate in a proper manner will cause the quality of the effluent to be such as would not meet the standard. There was other testimony concerning the possibility of a breakdown or not properly operating. Defendant plans to use the treatment plant to train students in the proper operation of such a unit. It is contended that this use would tend to increase the possibility of operational failure.

There was testimony offered by defendant that the activated sludge treatment plant followed by disinfection, which is chlorination, is the highest type of practical and feasible treatment normally accepted in the state of Illinois and that the effluent which will be discharged will not cause pollution as defined by the Sanitary Water Board Act. It was further shown that the Sanitary Water Board had examined the plans and issued a permit for the construction of this system.

Plaintiffs testified that they lived in property adjoining the watercourse and that their property is zoned for residential purposes; that it would bother them and interfere with their use and enjoyment of the property to have the effluent in the watercourse. They testified that, in their opinion, the passage of the effluent through their property would adversely affect its value. While many of their complaints are subjective in nature, they evidenced their sincerity by stating and stipulating to an offer to provide a right-of-way across their property for the outfall sewer without cost to the defendant. The water presently in the watercourse was recently tested and found unfit for drinking purposes.

By agreement of the parties, the trial judge made a personal inspection tour of the premises of ...


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