portion of Woodward avenue sewer within its corporate limits is private property of the city; therefore the existing nuisance may continue while the recriminating and opposed parties responsible for it try out their differences according to ancient forms of wager of battle in an endurance test of each other's olfactory nerves and ability to survive unsanitary environments. That the court properly decreed the nuisance must be abated by the responsible parties we are well satisfied. Private ownership of the sewers only becomes material in connection with the remedy directed.

This brings us to the question of whether the directed remedy for abatement of the nuisance promulgated by the State board of health was beyond the power of the board and court. Danger to public health, the basis of authority by which the board and court assumed to act, has always been regarded as sufficient ground for exercise of police power legislation and court adjudication on matters reasonably essential to guard against such danger. Act No. 98 (Pub. Acts 1913) is legislation to that end, well within the police power of the State. That such legislation may provide for State agencies, in the form of boards or commissioners clothed with large discretionary powers to carry out the provisions and purposes of the enactment, is supported by abundant authority. Kingman v. Sewerage Com., 153 Mass. 566 (27 N. E. 778, 12 L. R. A. 417); Vancleve v. Sewerage Com❜rs, 71 N. J. Law, 183 (58 Atl. 571); City of New York Health Dept. v. Trinity Church, 145 N. Y. 32 (39 N. E. 833, 27 L. R. A. 710); Woodruff v. Catlin, 54 Conn. 277 (6 Atl. 849); Prince v. Crocker, 166 Mass. 347 (44 N. E. 446, 32 L. R. A. 610); Henderson Bd. of Health v. Ward, 107 Ky. 477 (54 S. W. 725); Davock v. Moore, 105 Mich. 120 (63 N. W. 424, 28 L. R. A. 783).

Counsel contend that the remedy ordered is in contravention of the Constitution, because it proposes to take and appropriate private property of the city for the benefit of those residing outside its corporate limits without due process of law and just compensation therefor. In support of this contention a line of authorities in this State is cited, beginning with City of Detroit v. Corey, 9 Mich. 165 (80 Am. Dec. 78), and ending with Ostrander v. City of Lansing, 111 Mich. 693 (70 N. W. 332). As against the police power of the State, applied to protecting public health, we do not think the authorities cited establish the contention that sewers are purely private property. Those cases relate primarily to liability of municipalities in contracts, or in negligence cases or allied matters where questions of public health and police power are not involved. In such cases, as contradistinguished from public improvements of general governmental concern, cities' sewers are their private property. In 1 Dillon on Municipal Corporations (5th-Ed.), § 116, the distinction is pointed out in this language:

"But this statement [that waterworks, gas plants, sewers, etc., are private property of the city] is intended merely to embody the fundamental principle of the law upon which the rights of the municipality as a contracting party with another, or for liability for negligence, are to be determined.'

In New Orleans Gas Light Co. v. Commission, 197 U. S. 453, 25 Sup. Ct. 471, where the gas company, though acting under a franchise from the city, was compelled by a public drainage commission, at great expense, to remove its pipes in order that a sewer tunnel could take their place, the court said:

"The drainage of a city in the interests of the public health * * * is one of the most important purposes for which the police power can be exercised. * Uncompensated obedience to a regulation

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enacted for the public safety under the police power of the State is not a taking of property without due compensation."

In Vancleve v. Sewerage Com., supra, this question was squarely raised and thus disposed of:

"We are not willing, however, to assent to the notion that the municipal sewers, * * ** are held by the city as private property in such sense that the legislature cannot impair the city's rights therein without compensation. * The constitutional provision that private property shall not be taken for public use without compensation has no applicancy."

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What is here ordered by the court is incidental to the abatement of a nuisance, and is not a constitutional taking of property, to the exclusion of the owner from all use and possession of it and an actual assumption of exclusive ownership, possession, and control over it by the party in whose favor it is condemned and taken from the original owner at the end of a judicial determination. What the city is directed to do, or ordered to permit, in this case is more in the nature of a measure of its responsibility for the nuisance imputable in part to it; furthermore, in an equitable adjustment of responsibility between those jointly culpable for the nuisance, the court imposes upon the village the burden of paying the city for any benefits which incidentally result to it from the method prescribed for abating said nuisance.

In this connection it is well to note what "taking" the directed remedy for this nuisance contemplates, bearing in mind the vested rights and mutual obligations formerly adjudicated, under which the sewer operations in the affected district have obtained for nearly a decade and a half. The order does not deprive the city of any ownership, possession, control or needed present use, nor prospective so far as

shown, of any of its sewers; compliance with it calls for no expenditure of money by the city beyond that already voluntarily made or assumed, and imposes upon it no burden of debt or taxation. It provides for a diversion to relieve the Woodward avenue sewer outlet of the flow from Palmer Park and Highland Park, to the much larger and less burdened Morrell street sewer, entirely at the expense of the village. It only requires of the city that it allow connection to be made at the city boundary, where this sewer terminates with a size of 812 feet, providing ample capacity for tributary territory beyond. It requires the village to pay the city of Detroit over $86,000 for this connection and to assume the entire cost of constructing through its own territory and that of Greenfield township, permission for which has been granted by the latter, a trunk sewer 21⁄2 miles in length running from Woodward avenue sewer in Highland Park westerly and southerly to the north end of Morrell street sewer, to be constructed of a size to care for present and prospective requirements of the territory through which it is built and which is naturally tributary to it, the city of Detroit to have full control of the same, except a capacity requisite for the village and Palmer Park, and the village is also required to surrender its right to the use of Woodward avenue

sewer.

Counsel for the city cite Attorney General v. City of Grand Rapids, 175 Mich. 503 (141 N. W. 890, 50 L. R. A. [N. S.] 473, Am. & Eng. Ann. Cas. 1915A, 968), quoting what is there said to the effect that no prescriptive right exists to create or maintain nuisance, and urge that an affirmance of this decree would be a reversal of that case. The issue there involved was the right of a municipality to create a nuisance by pollution at a point where its sewers discharged. Here both these parties are discharging

their sewage into the Detroit river, one of the large connecting channels or straits of the Great Lakes. The statute under which it acted prohibits the board of health from preventing this, and no attempt has been made by the board or court to do so. The locality of the nuisance in issue, for which both municipalities are found jointly responsible, is nearly four miles away from the Detroit river. No prescriptive right to create or maintain a nuisance is claimed, and no riparian owner on the Detroit river, unless it be the city itself, the principal offender if it be an offense, raises any question as to its use by these municipalities being legitimate and reasonable. We find nothing in that case controlling this.

Objection is also made to the decree as unauthorized because it contemplates that the connecting sewer to be built by the village passes in part through Greenfield township, and adjoining proprietors are not shown to have given their consent. Neither are they shown to have objected. Permission to extend this sewer along the highways was given by the township authorities. The city cannot be heard to complain on grounds which only affect others who do not object, and the burden of carrying this sewer to the connection at the city limits is upon the village. We infer its failure to reach that connection would not be a serious grievance to the city.

We do not find counsel's contention that the Morrell street sewer is or will be needed to its full capacity for drainage of territory within the city sustained. The weight of the evidence is to the contrary, and well supports the finding of the court that the proposed connection can be made

"with entire justice to all interests concerned, and without damage or injury to anybody or any interest, and without depriving any other portion of the community of adequate and proper sewer facilities."