156 A. 159 | Pa. | 1931
Plaintiffs, in their bill filed May 17, 1926, seek to recover compensation and injunctive relief for averred damages received from silt or fine dust carried by wind from defendant's culm banks to and upon their greenhouses. The facts found by the chancellor are substantially as follows: The three plaintiffs in 1897, as copartners, engaged in the raising and culture of flowers in Coal Township, Northumberland County. They erected a greenhouse in 1897, a second in 1901 and a third in 1903, all closely grouped. Defendant's colliery, referred to in the pleadings as the Luke Fidler operation, is located upon its coal lands immediately adjacent and contiguous *553 to land upon which plaintiffs' three greenhouses are erected. Defendant acquired the colliery in 1917, its predecessors in title having operated it for more than forty years previous to the construction of plaintiffs' hothouses. Years before the erection of the greenhouses, two large culm banks had been deposited and formed by the predecessors in title of defendant. The eastern hothouse was erected within two hundred feet of the northern culm bank and the other two within two hundred to two hundred and fifty feet of the western culm bank. In 1914, defendant's predecessor in title began reclamation of the coal in the two banks. The operation entailed passing the culm through the breaker and washery of the colliery to remove the salable coal. Part of the rock and slate from this operation was deposited on the northern and western culm banks, and later carried to another portion of defendant's property; the fine dust or silt complained of, — the residual product passing through a one-sixteenth-inch mesh, — was carried by water in sluices to the site of the old northern bank and there deposited. The court found as a fact that no injury resulted to plaintiff due to negligence in the manner in which these deposits of silt were made and accumulated. In 1918, plaintiffs discovered silt and fine material were being carried by the wind from defendant's culm bank onto their greenhouses and notified defendant of the fact. Defendant neither gave nor promised relief but continued making deposits upon the northern bank until sometime in 1919 when it ceased depositing at that point and began placing the refuse upon the site of the old western bank. In 1923, a similar complaint was made to the general manager, superintendent and other members of defendant company but with the same result. The court found as a fact that the silt from defendant's banks is carried into plaintiffs' hothouses "by the ordinary action of the winds." Although this dust or silt "is deleterious and pernicious to plant and floral life, souring the soil, spotting the *554 plants and flowers, pitting and discoloring the glass" of plaintiffs' hothouses, and is otherwise destructive to the woodwork and iron of plaintiffs' buildings, and although it was found that the injuries are of a continuing nature, the chancellor refused the relief prayed for because plaintiffs were guilty of laches in instituting this proceeding.
To the chancellor's findings of fact, conclusions of law, and his answers to requests for findings filed by plaintiffs and defendant, both parties filed exceptions, all of which were dismissed by the court in banc in an opinion affirming the chancellor's decree. From this decree plaintiffs have appealed.
On this appeal we deem it unnecessary to discuss separately plaintiffs' thirty-one assignments of error. Briefly stated, it is plaintiffs' position that the alleged nuisance should be enjoined because of its continuing character; that laches should not have been imputed to plaintiffs inasmuch as no injury resulted to defendant by reason of the eight-year delay in filing their bill; that plaintiffs should be compensated for the damages the silt has already caused to their flowers, to the hothouses and to their business generally.
Whatever the merit of plaintiffs' case was in 1918 when the silt began to be carried by wind into plaintiffs' property, we are now faced with the fact that they have waited eight years before asking for relief. Accordingly we pass directly to the controlling question of laches. If it must be decided against plaintiffs, this decision renders unnecessary discussion of other issues here involved.
Appellants urge upon us the well-known rule, recently repeated by us in Quinn v. American Spiral Spring Mfg. Co.,
An examination of the record shows plaintiffs' eight-year delay in bringing this action has rendered it impossible for a court of equity to grant the relief prayed for without imposing great and inequitable hardship and injury upon defendant. The record shows that plaintiffs have been fully cognizant of the damage caused them by blowing silt since 1918. The record shows and the court found that both times formal complaint was made to the officials of defendant company no relief or promise of relief was given and defendant continued to make the deposits as before. It is immaterial that plaintiffs made these assertions of right if they took no legal steps to establish them: McGrann v. Allen,
We need not discuss the question of future falling of silt on plaintiffs' property, since the court found it would avail plaintiffs nothing to grant an injunction against further annoyance and damage at the points above mentioned, as the dust carried is not only from recent deposits but from the culm piles previously there. To afford plaintiffs the relief prayed for, defendant would not only have to be enjoined from continuing to deposit silt as heretofore, but also be required to remove the material already deposited. These banks are exceedingly large and silt will be carried by the wind in greater or less quantities therefrom for years to come unless defendant is compelled entirely to remove the culm banks. Since 1918 these banks have grown in size, in one case to 45 feet wider than the original bank and 400 feet longer. During these eight years defendant has had the expense of transporting the culm by sluices to the sites where deposited. The court found the sluice method of conveyance was "usual, ordinary and regular" in this industry, which finding is supported by evidence. The court also found the only location on defendant's property at which *557 silt could be placed to avoid being blown into plaintiffs' greenhouses is two thousand feet distant. Although it is true defendant could have sold the silt and shipped it away, it is equally true it had a right to store it on its own land pending such time as it could procure a better price for the product. The present piles are near the railroad and, were this injunction granted, if defendant should sell the silt at a future time, it would not only have incurred the added expense above mentioned, but would also be put to the expense of bringing the property back to the railroad for shipment.
Defendant had no remedy to determine its right to use of the land at the time the protests above referred to were made, and plaintiffs, who could well have asked for a determination of the question, did not take such action, but on the contrary suffered defendant to continue in its use of its land — a use defendant believed to be rightful — as it had been doing up to the time of the filing of this bill. Quinn v. American Spiral Spring Mfg. Co., supra, urged by plaintiffs in support of their contention that relief should not be withheld on the basis of laches, is not in point, as an examination of that decision shows the fourteen months' delay there involved did not, unlike the present one, increase defendant's burden in removing the offending matter complained of. In Sullivan v. Jones Laughlin Steel Co.,
In Orne v. Fridenberg,
The above conclusion disposes of the necessity of passing upon the question of damages, for as above said, "A suitor who by laches has made it impossible for a court *559 to enjoin his adversary without inflicting great injury upon him will be left to pursue his ordinary legal remedy": Stewart Wire Co. v. Lehigh Coal and Navigation Co., supra, page 478; Kessler v. Ensley, 123 Fed. 546, 567; 10 Rawle C. L. 374. Since the above considerations completely resolve our decision in the present appeal, we omit further discussion of the additional arguments advanced by appellants.
The judgment is affirmed; costs to be paid by appellants.