178 Pa. 543 | Pa. | 1897
Opinion by
Tins is an appeal from the decree of the court of common pleas of Blair county enjoining the defendants until further order from erecting a wall in a stream which passes through the borough of Tyrone in said county, and is known as the Little Juniata. Two of the defendants are the owners of a lot, in said borough, which extends to the bank of said stream, and along it for a distance of one hundred and thirty feet. In the summer of 1894 they employed the other defendant to erect a wall in the stream opposite their lot, and he was engaged in the performance of the work when the proceedings to prevent the con summation of it were instituted. The material complaint in the bill for an injunction was that the erection of the proposed wall would narrow the channel of the stream, and in times of freshets and floods cause the water to overflow a considerable portion of the borough to the injury of the property and health of its inhabitants. This complaint was met with a denial by the defendants that the risk of injury from floods and freshets would be increased by the wall, and with an averment that such risk would be reduced by it. The court, however, was convinced by the evidence in the case that the complaint was well founded, and that the wall would constitute a public nuisance.
The findings of the court under the new equity rules are like the findings of a master under the old practice. They will not be set aside on appeal if they appear to have been authorized by the evidence. An apparent preponderance of testimony in support of the appellants’ contention is not sufficient to condemn them, because in the finding of facts from evidence the credibility of the witnesses is an important factor, and of this the court below had better opportunity to judge than is given to us on appeal. In considering a specification of error which calls in question a finding of fact by the court we must not lose sight of the familiar principle or rule applicable to the report of a master or to the verdict of a jury. With this rule in view we have carefully examined and considered the testimony applicable to the issues of fact in the case before us. The findings based upon this testimony appear to be well sustained by it. It authorized and it fairly supports the answers to the defendants’ requests for findings of fact.
The defendants claim that they cannot be lawfully enjoined
Decree affirmed and appeal dismissed at the costs of the appel lants.'