Wichita eagle. [volume] (Wichita, Kan.) 1886-1890, 1889-07-12
PUBLIC HEALTH COMMITTEES.
An Opinion Submitted on the Chisholm Creek
Mil Dam Question. and " hole Affair Re
ferred to the City Council.

| some sort Of an opinion on the hydraullc
! mill dam removal question from the city
! attorney. The assistant, AIr. J. A. Bru-
/ baker, was on hand having been assigned
/ the task of preparing a document on the
| matter. The first thing called up in the
meeting was the Chisholm creek affair,
and Mr. Brubaker said he had investigated
the question rather carefully and his
| opinion as given would be on the situation
and facts given by some members OF
the hoard. Concerning the matter n said
In compliance with a request from your
| body that | furnish you with written
| opinion regarding the removal or abate-
ment Of a nuisance said TO exist on Cnls-
| holm creek and within the corporate lin
! its of this CITY, caused by the maintain
ance of a dam at the Hydraulic mills,
| whereby the water in said creek Is backed
/ up and stands in stagnant condition,
| emitting noxious gases and nOisome doors
dangerous to the health and comfort OF
| the citizens in that locality, beg to say
/ that IL IS my opinion that such a nuisance
| can be abated by the city, by the removal
of said dam by the city. The first ques
| ton is, does this dam create nuisances
| If the noisome smells, eff1uvia and gases
coming from Chisholm creek are produc-
| ed by the water being IN a stagnant con-
! dition by reason Of this dam, and are such
| as 10 produce actual physical discomfort
to person Of ordinary sensibilities, or are
/ such as to impair the health Of the in
| habitants in that locality, then it is a
nuisance.
! The right of this municipality to remove
| and abate all nuisances is derived from its
/ charter or general law, subdivision II,
sec. II, Ch- IS, relating to cities Of the
| first class, which says:
! The mayor and council shall have the
! power to enact ordinances for the purposes
! hereinafter named, not repungnant TO the
| constitution and laws Of this state; and
shall have power to make regulations TO
secure the general health of the city; to
| prevent aud remove instances and to
make, prescribe and enforce regulations
| for the cleaning and keeping in order all
| slaughter houses, etc, or other places
where offensive matter is permitted TO
accumulate
The question, therefore, that cOnfronts
US, is there any constitutional provision or
law of this state, to which an ordinance
removing dams such as the one in ques-
ton would be repugnant?
This dam was constructed under and by
virtue OF certain condemnation proceed
ings had under sections l and following of
chapter Co of the laws OF 1861 While this
dam, therefore, was ia its inception per-
fectly legal and gave to the owners Of the
! Hydraulic mill the rights TO enjoy all
the benefits which might accrue from the
dam, yet it cannot be argued that the leg
/ isIature ever intended to grant TO the own
ers of a mill the right to create and main
tain a nuisance.
In such case the mill owner pays under
the condemnation proceedings for simply
what be gets, to-wit: certain limited use
of the land of another Tor special purposes
as if it were his own.
The fact that this dam was erected I'M
der the Mil act is no defense 20 the main
tenance Of a nuisance.
know of no other statute that even re-
motely affects the question
Neither do conceive that an ordinance
drawn under said statutory provision en-
towering the city government OF a city of
the first-class TO remove nuisances and the
/ removal Of said dam by virtue thereof,
would be repug nant to the provision that
10 state shall pass any law impairing the
obligations OF contracts or permitting pri-
vate property to be taken for public Use
without compensation.
Every right from absolute ownership
down 10 a mere easement IN property
Is purchased and holden subject to the
restriction that it shall be so used as not
TO injure others.
| 1t is a well settled principle of law that
every man holds his property subject to
this police law or regulation, and it is
! equally as well settled that laws aud regu-
latlons regarding the health, comfort and
general welfare of the city, although they
may disturb the enjoyment of individual
rights, are constitutional, though no pro-
vision IS made for such disturbance
take it that said mill dam is part and
parcel Of said mill under said condemna-
ton proceedings; without said mill said
! dam has not now and never had the right
10 exist, under the mill dam act,
and that in the removal of said dam, the
/ city government would not thereby be ap-
| propriating private property, but would
/ simply be regulating the use Of said mill,
under police regulation
The power to regulate the use OF private
/ property so as not to cause a nuisance is
undoubted under said subdivision II Of
! section II, above quoted.
The TACT that this dam has become q
nuisance perhaps from the reason Of the
spread Of the city, so that homes are now
in that vicinity makes it none the less a
nuisance, aud at the time Of the erection
OF the dam, the owners of same or subse-
fequent purchases thereof are bound to
know, at their peril, that it may become
! such
| Nor do I conceive that the city IS estop-
ped by any laches On its part, as was the
casa in Woodman vs.. Themes ct al, re-
ported in relating to the Little Arkansas
river dam, nor TO the fact that Dold's
packing house, recently erected, increased
the nuisance, If the dam would have been
q nuisance without this fact.
The sole question for Your honorable
( board TO determine is. would this nuisance
be abated by the tearing out Of said dam,
or would the general comfort and health
of the citizens be increased by the de-
sioyIng Of the dam
You cannot deprive a man Of the enjoy
ment of his property or OF any interest
! therein. Unless the evil complained OF is
/ thereby remedied-
| would deem IL better that a new ordi
nance be drawn enscting that sll dams in
| their nature a nuisance, within the cor
porate limits Of the city, be re-
moved upon giving TO the owner thereof
| a notice for q specified time requiring him
| 20 remove the nuisance; also providing for