71 Pa. Super. 480 | Pa. Super. Ct. | 1919
Opinion by
The plaintiffs filed their bill alleging they were the owners of certain real estate therein described which was improved with a stone dwelling house used by one of them as a residence. The defendant was and is a corporation engaged in the mining, preparing for market and shipping coal. In the operation of its work, it drew from a natural stream called Mill creek a portion of the waters thereof and used them in washing coal. This water, after being thus used, together with other water drawn from the mines of the defendant, was carried to a sump or settling tank and then by artificial means so handled that it was discharged into or upon an entirely different
■ The defendant filed a responsive answer and among other things asserted the plaintiffs had an adequate remedy at law and therefore denied the jurisdiction of a court in equity to furnish any relief. A preliminary injunction restraining the defendant from thus interfering with the waters of Mill creek was awarded. Upon the hearing of the rule to dissolve or continue the parties agreed that the testimony then taken should be considered thereafter, upon final hearing, subject to the right of either party to adduce additional testimony on such final hearing.' In the disposition of the rule, after a full consideration of the testimony taken, the learned court below entered a decree dissolving the injunction and certifying the case to the Court of Common Pleas at the costs of the plaintiffs “under the provisions of the Act of June 7, 1907, P. L. 440.” The reasons moving the learned chancellor to this action as stated by himself were these: “The chancellor, after final hearing, found that the preliminary injunction should be dissolved on the ground that the plaintiffs had lost their right thereto by laches and acquiescence and that they had a complete and adequate remedy at law.” The plaintiffs, in the exercise of the right conferred upon them by the statute referred to, took this appeal from the order certifying the case to the common pleas.
The act of assembly we have cited was enacted for the purpose of speeding the final disposition of suits in equity. As provided therein, the defendant, in its answer filed, promptly challenged the jurisdiction of the
It plainly appears from the facts found the defendant is but a private corporation without right other than its right as a riparian owner to use or interfere with the waters of Mill creek. It was not contended but that defendant had diverted a quantity of this water from its natural channel and after making use of it did not return it to that channel, but diverted it into an entirely different watershed which it could not and would not reach if controlled only by natural laws. The operations of the defendant company, involving such use of the water, were conducted by methods which appear to have been intended to be permanent in character. If then this resulted in flooding the plaintiffs’ property, it would fairly follow that under similar conditions such results would happen again and again, and thus there was made out, on the face of the bill, a case which warranted an application for equitable relief.
It is to be remembered the order appealed from must find its warrant in the Act of 1907. Under that statute it can be justified only on -the ground that it has been correctly determined the learned court below was without jurisdiction to proceed to a final decree in accordance with the rules and practice governing the trial of cases in equity. We are not and cannot be concerned with a consideration of the reasons that might with propriety lead a chancellor to refuse a decree even in a case where the jurisdiction was unquestioned. We may agree with the learned chancellor that the wilful laches of a complainant, persisted in for a great length of time, and reasonably leading to action by another party which
If it be true, as the court below finds, that some time ago another coal company, whose works were situated higher up the stream, diverted some of the water of Mill creek into the watershed of Wolf creek and that plaintiffs did not complain, we are unable to perceive how it can be concluded from that fact the plaintiffs have lost their right to complain of the unwarranted action of the defendant. The earlier diversion may have been so insignificant in quantity or the place where it occurred so far removed from the plaintiff’s property that no substantial injury to the plaintiffs resulted. We do not think they were obliged to assert their naked right as riparian owners, if they had such right where they suffered no substantial injury. The diversion complained of in the present case has been going on but for a comparatively short period of time. The injuries complained of in the bill were the first substantial ones that were done to the property of the plaintiffs. We are unwilling to say that their failure to move earlier, has brought about the result that they have estopped them
Again it appears that upon the granting of the preliminary injunction the defendant so modified its plan of operations that the water taken from Mill creek was returned to the channel of that stream. This was the status that existed at the time the order appealed from was entered. It has not been shown, to our satisfaction, that such modification in the' conduct of the defendant’s business involved any considerable expense or was productive of any serious disturbance in the prosecution of its work. Since that change no injury to the plaintiffs’ property has resulted. In this aspect of the case there might be found considerable support for the proposition that the injunction should be made permanent unless some controlling reason to the contrary should appear.
Whilst we suppose it to be á matter of general knowledge, of which a court might take notice, that the winter of 1917-1918 was a more severe one than those usually prevailing in this section, nevertheless the court has not found that it was of such extraordinary character that similar conditions might not be reasonably expected to recur at more or less frequent intervals. Even unusually extensive accumulations of snow and ice in this section could scarcely be deemed such wholly unexpected occurrences as to be outside of the reasonable calculations of men. The court below was' not, in our judgment, deprived of jurisdiction to dispose of the case upon any such consideration. '
But it is urged that the plaintiffs had a complete and adequate remedy at law. It is much to be doubted. In an ordinary action of trespass they could of course recover the damages, if any, resulting from an unlawful act by the defendant down to the date of the impetration of the writ or perhaps to the time of actual trial. But if the diversion of the water from its natural watershed to another was a wrongful act, resulting in injury, it
The suggestion that plaintiffs, by removing from the house, have conclusively affirmed their intention to finally and permanently abandon it, and therefore the injury was completed before the bill was filed, is not a convincing one. The land and house are still there. It would not be unreasonable to assume the owners were awaiting some decree protecting them from future injury before spending their money for repairs.
Upon a consideration of the whole case we are led to conclude the plaintiffs presented a cause cognizable by a court of equity and that the learned court below was invested with full jurisdiction to proceed in the usual course to a final decree that would adjudicate the matter in controversy in the manner' contemplated by the statutes conferring such equity jurisdiction. If it be said the bill contains no averments as to the extent of the damage and no prayer that an account thereof be taken, these are matters that can doubtless be remedied in the court below so that its final decree may put an end to the controversy. But the question is not before us.
The order of the learned court dissolving the injunction and certifying the case to the Court of Common Pleas is reversed and set aside, the injunction is reinstated and the record remitted to the court below with a procedendo. The costs of this appeal to be paid by the appellee.