#### City of Cleveland, Appellant, *v.*Village of Cuyahoga Heights et al., Appellees.

*192(No. 20692

Decided June 16, 1947.)

*Mr. Lee C. Howley,*director of law, and *Mr. James M. McSweeney,*for appellant. '

*Messrs. Walter <& Haverfield,*for appellees.

Hurd, P. J.

This is an action for injunction, whereby plaintiff, city of Cleveland, appellant herein, seeks to restrain defendants, village of Cuyahoga Heights et al., appellees herein, from connecting with and discharging sewage into the southerly interceptor sewer constructed and maintained by the city of Cleveland through the village of Cuyahoga Heights. The Court of Common Pleas denied the injunction and dismissed the petition, and the case is now in this court on trial *“de novo,”*having been submitted by agreement on the record rpade below.

In the interests of brevity, the city of Cleveland and the village of Cuyahoga Heights will hereinafter be designated as the “city” and the “village” respectively.

*193When the case came to this court on appeal, the village had completed the work of constructing a sewer within its territorial limits, connecting with the southerly intercepting sewer of the city, which latter sewer was located in the village. By stipulation of the parties it was agreed that the village would not attempt to discharge sewage into the city’s interceptor until the determination of the case in this court.

At the conclusion of oral arguments in this case an application was made hy counsel that the court view the premises in a body. That application was granted and the members of the court, together with counsel and the engineers respectively of the city and the village, joined in an inspection of the property in the' village where the sewage disposal plant of the city is located.

While a number of issues were raised and decided in the Common Pleas Court it is conceded now that the sole question to be determined in this- court is the validity of a certain contract by and between the city and the village of Newburgh Heights, dated August 11, 1916, to the rights and liabilities of which contract the village of Cuyahoga Heights succeeded by reason of proceedings in 1919 whereby the territory now comprising the village of Cuyahoga Heights was detached from Newburgh Heights. The provisions of the contract in controversy are as follows:

“First: That the village of Newburgh Heights, hereby grants to the city of Cleveland full permission and authority to construct an intercepting sewer and to convey sewage therein upon and along one of the following routes, as said city of Cleveland may deter-: mine, to wit:

* * * * *

“C. The village of Newburgh Heights is hereby given the right to connect, at its sole cost and expense, *194*any and*all of its present or future sanitary sewers with said intercepting sewer, or with any portion of the city’s intercepting sewer now constructed, by means of said manholes and said openings as shown on the said map hereto attached, and to discharge all of its present and future sanitary sewage into said intercepting sewer, subject only to the limitations hereinafter set forth, and said sewage shall be disposed of by said city of Cleveland in like manner as ■other sewage conveyed through said intercepting sewer without cost or expense to the village of New-burgh Heights.

“Third: In the event that the sewage conveyed through said intercepting sewer should be disposed ■of at any future time by the city of Cleveland, at any point within the village of Newburgh Heights in a manner objectionable to the public authorities of said village, and the disposal of said sewage within the said village should be permanently prevented by said village by court proceedings or otherwise, then the future right of the village to discharge any sewage in said intercepting sewer now built as provided in subparagraph ‘C’ shall thereupon cease and determine.”

It is the claim of the city that the contract is void and against public policy, because by its terms the legislative officers of the city surrender for all time its free, legislative authority; because it grants a perpetual property ‘right in the village to have its sewage disposed of through the southerly intercepting sewer free of charge, and as a burden on the taxpayers of the city and is, therefore, *ultra vires;*and that the contract fails because no measurable consideration moved to the city for the granting of the right claimed by the village.

*195The record in this case is volnminons and we think it unnecessary to detail at length the conduct of the parties with respect to the contract in question. For the purpose of this opinion we think it is sufficient to state that the record herein discloses that for a period of approximately 30 years from the date of the contract in 1916 to the date of the filing of the original petition herein, on July 23, 1946, the parties have continuously recognized and discharged their mutual obligations under the contract. ,

The city has enjoyed the benefits of the contract (1) by the operation of its southerly interceptor sewer through the, territory of the village and (2) by the construction of its sewage disposal plant within the village in 1926 and by the maintenance, operation and-expansion thereof to take care of sewage in an ever-increasing volume since that date. Also the record shows that all the sludge produced in the city’s easterly sewage disposal plant along Lake Erie is pumped to the southerly disposal plant in Cuyahoga Heights, and is there treated and, disposed of by the city.

It is our opinion that the use of this land for sewage disposal purposes has imposed and continues to impose upon the village and its inhabitants, a substantial continuing burden, even though the land used is owned by the city. The disposal plant installed in the village with its receiving and concentration tanks, sludge digestion and storage tanks, sand-beds for drying the digested sludge and other similar processes constitutes a burden of nuisance proportions which renders the entire area and the land adjacent to it practically worthless for any other useful purposes.

Were it not for the agreement in question and the permits granted by the village in pursuance thereof, in our opinion such a burden could not be successfully *196imposed upon the village or its inhabitants against their will.

As late as 1938 the city recognized and affirmed its obligations under the contract when it adopted an ordinance fixing rates to be charged to other adjoining municipalities for discharging sewage into its sewerage system.

Section 2 of the ordinance is as follows :

“The provisions of this ordinance *shall not impair' the obligation of the city of Cleveland to furnish without charge to the village of Cuyahoga Heights the sewage treatment facilities of the city of Cleveland in accordance with an existing agreement entered into as a part of the consideration for permitting the loOation of the southerly sewage treatment works ivithin the limits of the territory now included in Cuyahoga*Heights(Emphasis ours.)

In many other instances, directly and indirectly, the city has recognized its obligations under the contract during the period from 1916 to 1946 until the dispute occurred in the instant case.

The city does not here claim that it was without authority to enter into an agreement with the predecessor in interest of the village for the extension of its sewerage system through the territory of the village but that it was without authority to agree to contract for the disposal of the sewage of the village, free of charge in consideration of the benefits accruing to it from the agreement.

It is well settled that a municipal corporation has the power to make and enter into contracts which are. necessary or proper to enable it to perform its functions.

, See among others, the following authorities: 3 Mc-Quillin, Municipal Corporations (2 Ed., Revised), *1971098, Section 1269; *Cass*v. Dillon, 2 Ohio St., 607, at page 622.

Section 4, Article XVIII, of the Ohio Constitution adopted in Í912, grants the right to municipalities to acquire, construct, own, lease and operate public utilities within or without their corporate limits as follows:

“4. Any municipality may acquire, construct, own, lease and operate within or without its corporate limits, any public utility the product or service of which is or is to be supplied to the municipality or its inhabitants, and may contract with others for any such product or service.”

That section of the Constitution is self-executing and cannot be limited by statute, nor does it need statutory enactment to give it life. *Ricketts*v. *Mansfield,*43 Ohio App., 316, 183 N. E., 181; *Priest*v. *Wapakoneta,*24 Ohio Law Abs., 214, 32 N. E. (2d), 869; *Kuertz*v. *Union Gas & Elec. Co.,*27 N. P. (N. S.), 221.

Under the above stated elementary principle of power of municipal corporations to contract, a municipality' clearly has the power and authority to contract with other municipalities on such terms as the parties deem reasonable in order to exercise the powers granted to them by the Constitution of Ohio.

The construction and maintenance of sewers, drains and sewage disposal works are functions expressly conferred upon municipal corporations by the statutes of Ohio. Section 3616, General Code, provides' that all municipal corporations shall have the general powers mentioned in Division II, Chapter I, of the General Code, and among the general powers there enumerated is the power set forth in Section 3647, General Code, as follows:

“To open, construct and keep in repair sewage disposal works, sewers, drains and ditches * * *.”

*198And Section.3939, General Code, provides in part:

“Each municipal corporation in addition to other powers conferred by law shall have power:

* * * # *

“(10) To construct sewers, sewage disposal works, flushing tunnels, drains and ditches.”

That expressly granted power to construct sewers, drains and sewage disposal works carries, by necessary implication under the principles above set forth, full power to make and enter into contracts necessary' or proper for the exercise of such power, unless such contracts are prohibited by statute or are against public policy. In the exercise of its authorized functions and powers, a municipal corporation may, unless expressly prohibited by statute or charter, acquire or contract for the acquisition of land or rights in land located outside of its corporate limits. See 3 McQuillin, Municipal Corporations (2 Ed., Revised), 978, Section 1210. Thus, ,a general power to construct sewers empowers a municipal corporation to acquire and to contract for the acquisition of sewer outlets or sewer rights outside its corporate limits, even though the statute conferring the power to,construct sewers is silent on the subject of acquiring or contracting for land or rights' therein outside its corporate limits. See among others, the following authorities: *4*McQuillin, Municipal Corporations (2 Ed., Revised), 403, Section 1551; *Minnesota & M. Land & Improvement Co.*v. *City of Billings,*111 F., 972 (C. C. A. 9); *McBean*v. *City of Fresno,*112 Cal., 159, 44 P., 358, 53 Am. St. Rep., 191, 31 L. R. A., 794; *Langley*v. *Augusta,*118 Ga., 590, 45 S. E., 486; *Callon*v. *City of Jacksonville,*147 Ill., 113, 35 N. E., 223; *Coldwater*v. *Tucker,*36 Mich., 474, 24 Am. Rep., 601; *City of New Brunswick*v. *Borough of Milltown,*135 N. J. Eq., 310, 38 A. (2d), 288.

*199The city has cited many cases in support of its position. Principal reliance is based on the cases of *Cleveland*v. *Edwards,*109 Ohio St., 598, 143 N. E., 181, 37 A. L. R., 1352; *City, ex rel. Diehm,*v. *Lakeview Cemetery Assoc.*(Common Pleas Court, Cuyahoga County, unreported); *Ericksen*v. *City of Sioux Falls,*14 N. W. (2d), 89.

We have examined those cases carefully and find that the facts are not analogous to the facts of the instant case. It would lengthen this opinion unduly to discuss in detail those and other cases cited by the %city. A digest of all of those cases discloses in each instance distinguishing features of fact which must necessarily exclude them as authority in our determination of the issues here presented.

In an able opinion filed in this case by McNamee, J., of Common Pleas Court, there is a discussion of the cases of *New Brunswick*v. *Milltown,*135 N. J. Eq., 310, 38 A. (2d), 288; *McNemry*v. *Bellevue Borough,*301 Pa. St., 568, 152 A., 563. In commenting on those cases, Judge McNamee said:

“* * * In *New Brunswick*v. *Milltown,*135 N. J. Eq., 310, 38 A. (2d), 288, the court held that evidence showing an increased annual cost of $1,500 to the city for the disposal of sewage of the village did not warrant the cancellation of the contract by which the city had agreed to dispose of such sewage free of expense to the village. In connection with this the court said:

“ ‘That the agreement as thus entered into now entails greater expense and renders performance of the same more burdensome to the complainant than contemplated at the time it was made is not a sufficient ground for relief by way of cancellation.’ ” (Opinion page 314.)

And again, in answering the complainant’s con*200tention that the contract in the cited cases was invalid, because it was indefinite as to duration, the court said:

“ ‘Complainant’s contention that the agreement is void as against public policy because it is by its terms perpetual and imposes a never ending burden upon complainant is without merit. The power delegated to the contracting municipalities by the statute contains no limitation with respect to the length of time for which such agreement may be made; hence this agreement made pursuant to such statutory authority may not be condemned because its duration is without limitation.’ ” *(Ibid.*314.)

In *McNemry et ux.*v. *Bellevue*Borough, 301 Pa. St., 568, 152 A., 563, in commenting upon a contract by which the Borough of Bellevue was granted permission to lay sewer pipes in the territory of the adjoining Borough of Avalon in return for the privilege granted to twenty-five property owners of Av'alon to connect and use the sewer belonging to Bellevue, the court said:

“ ‘The Borough of Bellevue had granted permission to twenty-five residents of Avalon to connect with the eighteen-inch sewer. This was the price the former paid to the latter for the privilege of laying the sewer in its territory.’

“In the instant case the right to convey sewage through and dispose of the same within the territorial limits of an adjoining municipality was obtained by the city upon its promise to pay the price of serving' the present and future sewage of the territory of the village without charge. This agreement cannot be held invalid for the reasons now urged by plaintiff. In executing the agreement of 1916, the city of Cleveland exercised its general power to make contract's necessary and proper to the accomplishment of its *201public functions and it bas not been established that such contract violated any statute or that it contravened any established principle of public policy. It must therefore be upheld.”

While we approve the conclusion of the trial court, we think it should be further emphasized that the continuing use of the right of way granted to the city, together with the continuing operation of the sewage disposal plant within the territorial limits of the village, together impose a duty upon the city to recognize and fulfill its stated contractual obligations.

Further it. is implicit in arguments presented by the city that it would be content to permit the connection of the interceptor provided that it would be paid certain rental charges commensurate with the charges paid by bther municipalities for like services. Considering the specific terms of the contract and the continuing substantial benefits daily accruing to the- city under it, it is our view that the city cannot repudiate its obligations while retaining the benefits. Certainly a court of equity should not grant the injunctive process in aid of such a purpose.

Counsel for the city have stressed the perpetual nature of the obligations imposed under the contract. However, it must he remembered that both parties are equally bound. It may be that some time in the future new conditions may arise; for instance the city may eventually abandon the right of way created under the existing contract and conceivably may cease to use the property now located in the village for sewage disposal purposes. If such or any similar situations should develop the parties may then seek a further determination of the rights and liabilities under such materially changed conditions.

■ For the reasons stated, a decree will be entered for the defendants; the injunction prayed for is denied *202and the petition dismissed at the costs of plaintiff, appellant.

*Decree for defendants.*

Morgan, J., and Skeel, J., concur.