Appeal of the City of Harrisburg

107 Pa. 102 | Pa. | 1884

Mr. Justice PAXSON

delivered the opinion of the court, October 6, 1884.

This bill was filed by the plaintiff below for an injunction to restrain the city of Harrisburg from stopping the water supply from certain houses owned by him. The city claimed to charge each house with the use of the water, although in point of fact the houses were so constructed that one hydrant supplied two houses. The evidence shows that the water was used for each house, and for some years the water rent was paid by the owner as claimed by the city.

The case was referred to a Master, who found the facts in favor of the defendants, and recommended that the bill be dismissed. Upon exceptions the court below reversed the Master and made the injunction perpetual. The main ground of this action appears to be that in the opinion of the court, knowledge of such unauthorized use of the water was not brought home to the plaintiff. The learned judge says in his opinion : “ The agent, G. J. Kunkel, testifies in the most positive terms — -and there is no contradictory testimony — that he did not permit the use of. the water by the tenants of those premises not provided with hydrants and pavement washers, and did not know of such use, except probably by one tenant for part of the year 1880, which is the year in question. Yet the Master, in the face of this uncontradicted testimony, finds by way of inference, that he did know of such use, and did permit it in effect during all of said year.”

We are compelled to differ from the learned court upon this point, and sustain the finding of the Master, so far as to say that there was abundance in the case to justify his inference of plaintiff’s knowledge of the use of the water by his tenants. To say nothing of the water bills for such use, presented and paid for several years, the plaintiff knew that his tenants had no other source of supply. When a man builds or owns two houses with one hydrant only between them, it is .not a violent presumption that he expects the occupant of each house to get his supply of water therefrom. And although he may plead ignorance of the actual use of the water by his tenant, and may not have expressly authorized it, a chancellor will pay little heed to 'such ignorance. It is sufficient to glance at the plan of plaintiff’s houses to see that they were constructed with the view of supplying two or more houses from one hydrant. Whatever may be the legal merits of this controversy it is certainly not one for the interference of a chancellor. The plaintiff has no equity.

The decree is reversed, the injunction is dissolved,'and the bill dismissed at the costs of the appellees.