State Board of Health v. Mayor & Commissioners

Henry, Chief Judge of the First Judicial Circuit, by special assignment delivered the opinion of the Court. The Town of Westernport (hereinafter referred to as Town), a municipality situated on the north bank of the Potomac River, in Allegany County near the Garrett County line, has, since 1951, been supplying water to its residents through a transmission line from the Savage River Dam located some six miles distant. For many years prior to the 1951 completion of the Savage River Dam, Town had received its water from the Savage River and had used the same transmission line. ³⁷⁴ Over a period of years, Town has permitted persons outside the city limits along the course of the transmission line to tap into the transmission line for an initial fee for the right to tap the line plus a periodic charge for water supplied. At the time of bringing this action there were nineteen such users of the water.

In addition to these persons Town has permitted the West Virginia Pulp and Paper Company which employs some seventy-five people to tap the line free of charge and also has contracted with the Town of Bloomington to supply its water requirements from the transmission line. It was stipulated by both sides that the water at the Savage River Dam is polluted and unsafe for drinking purposes without being chlorinated or boiled. In fact, Town has been chlorinating the water at the Savage River Dam since 1951 and prior to that at the reservoir which the Dam supplanted. On November 1, 1955, the State Board of Health (hereinafter referred to as the Board), after many years of negotiating with Town, issued a permit to erect a water filtration plant in accordance with specifications submitted by Glace and Glace, Inc., engineers.

The specifications called for installation of chlorinators at the filtration plant which was to be constructed inside the city limits. Pursuant to the permit, Town has since constructed the filtration plant and has given individual notice to the nineteen users along the transmission line of its intention to discontinue chlorination at the Savage River Dam. The notice also contained an offer to supply raw water for a nominal charge upon the users’ execution of an agreement with Town whereby the latter “will not be held liable for any illness resulting from the use of the raw water.” In event of failure to enter into the agreement, the users were given ninety days notice of discontinuance of water service. West Virginia Pulp and Paper Company and the Town of Bloomington have made their own arrangements for chlorinating water from the transmission line since construction of the filtration plant.

On August 30, 1955, prior to the issuance of the permit, the Board wrote Glace and Glace, Inc., “Considering the possibility of by-passing the plant, provisions should be made ³⁷⁵ to apply chlorine on the line entering the reservoir unless the raw water will be chlorinated at the Savage River Dam.” On September 8, 1955, Glace and Glace, Inc., replied: “It is the intention to maintain the existing chlorinator at the Savage River Dam so that raw water may be chlorinated when the filter plant is by-passed.” Subsequent to the issuance of the permit to build the filtration plant, there has been much negotiation between Town and the Board concerning continuance of the operation of the chlorination plant at the Savage River Dam. Town has agreed to continue operating the chlorination plant at the Savage River Dam if the nineteen users will pay the operating expenses. The alternatives apparently open to the nineteen users are to install individual chlorination systems or to develop private water systems. From the evidence, it appears that the first of these alternatives is not practical in that private systems are not dependable, and the second is not feasible for at least one of the users, in that the terrain is