227 Pa. 473 | Pa. | 1910
Opinion by
March 14, 1910:
The City of Carbondale was not a party to the litigation which led to the decision of this court in McCabe v. Watt, 224 Pa. 259, and the question of the legal obligation resting ■upon the city to extinguish the flames of a subterranean fire upon private property within its limits, -was not before the court for decision. It is a mistake therefore, to assume that the legal duty of the city to cut off or extinguish the fire under such circumstances, was passed upon or decided in that case. What the authorities of a municipality ought to do in the exercise of a sound discretion, when it comes to grappling with a disastrous underground conflagration, is one thing, and the power of a court of equity to supervise or control the exercise of that discretion, is another.
The case was heard upon bill and answer, and from the answer the following facts appear, which must be taken as established:
1. There are no methods in common and ordinary use which can be utilized to put out the fire complained of in the plaintiff’s bill.
2. Whether the fire can be extinguished at all or not, is a
3. Before any intelligent effort can be made to extinguish the fire, an expense amounting to approximately $100,000, would have to be incurred, and that without any assurance that such effort involving such a large sum of money would be successful.
4. The defendant has no apparatus by which it or any of its officers are able to extinguish the fire; there is no department of defendant city in any way equipped for the purpose of extinguishing it, and there are no officers of the city competent to undertake to extinguish or confine it.
5. The defendant is entirely without means with which to put out the fire in question.
Upon the facts which are undisputed, the court below refused to award a mandatory injunction against the city. Nothing appears in the record to indicate that the officers of the city are not acting in good faith, or in the exercise of their best judgment. They cannot be required to do an impossible or an impracticable thing. It may be that the cost of the effort demanded by appellants to extinguish the underground flames would exceed the damage resulting from the fire. It must be remembered that the City of Carbondale is in no way responsible for the existence of the fire. It started upon, and is still confined to private property. The situation is an extraordinary one, and the record presents nothing to indicate that the city authorities have gone beyond their discretionary power in refusing to act in the premises. It is not for the courts to supervise or control the fair exercise of judgment or discretion by the city authorities.
A further good and sufficient reason why a mandatory injunction should be refused under the circumstances of this case, is that its enforcement would require close and continuous supervision by the court for an indefinite time. As our Brother Elkin said in McCabe v. Watt (No. 1), 224 Pa. 253 (258): “A mandatory injunction should never be granted when its enforcement will require too great an amount of supervision by the court. It needs no citation of authorities
The principle under which municipalities may be compelled to abate nuisances upon a public highway, or.arising out of their own neglect of duty, does not apply here. The defendant city committed no tort. The fire was not permitted to start upon any property under her control, and she is innocent of any wrong doing in connection, there with. The court below very properly refused a mandatory injunction in this case.
The appeal is dismissed at the cost of appellants.