76 Pa. Super. 135 | Pa. Super. Ct. | 1921
Opinion by
It is true that when this case was formerly before this court (71 Pa. Superior Ct. 480), but a single question
Let us briefly restate what we consider to be the controlling findings of fact in the case, as the learned
A preliminary injunction was awarded on the 21st of January, 1918, and the findings of the court, with a decree nisi, were filed upon the 27th of May, 1918, as to which date the learned chancellor further found that since the granting of the injunction the plaintiff’s property has not had any water cast upon it from the defendant’s operation, and the water of the Little Wolf creek has flowed, impregnated with sulphur it is true, but clear of muck, culm and coal dirt.
Upon the facts thus found, the learned court predicated the following conclusions of law: 1. “That the diversion by the defendant of the water of Mill creek from its natural channel into the channel of Little Wolf creek is without right and illegal.” 2. “That the increase by the defendant in the flow of water in the Little
Now as we have already stated all of these facts remained in the record at the time of the final hearing, with the same compelling force as they had at the time they were found by the chancellor. It has already been determined by this court they properly and completely grounded the jurisdiction of a court of equity to furnish relief unless such relief should be denied for some reason not then apparent to this court in its examination of the record as it came from the court below. As already stated, upon a final consideration of the entire case, the learned court below dismissed the bill on the ground the plaintiffs had lost their right by laches. No new facts upon that subject appear. No new testimony was offered. That question was in the case when it was formerly considered upon the same findings and record we now have before us. To demonstrate that this subject received the full attention of this court at the time, we quote from the opinion then filed: “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 sub
We may advert to one other consideration that appears to have operated to the injury of the plaintiff in the final consideration of the case in the court below. It may be true the defendant constructed its slush dam without negligence and operated it in the same way and that the operation of that dam is useful in the defendant’s work of preparing its coal for market. None of these considerations are adequate in the eye of the law to justify the defendant’s act in diverting water from one stream to another in a different watershed to the established injury of these plaintiffs. And this is especially true in the light of the findings of the learned judge below, that no overflow had occurred'since the preliminary injunc
That language may be as truly predicated of the condition of the record as it is now before us, as it was when it was written. We can see no reason for anticipating any difficulty in formulating a proper decree. Of course no decree granting any relief is before us for our consideration. Certainly these plaintiffs would not be entitled to a decree that would go no farther than to restrain the defendant from diverting the waters of Mill creek from their natural channel. The plaintiffs are not riparian owners along that stream, and they have no interest, and do not pretend to have any, in the extent to which the defendant depletes the flood of the waters therein. It is not an injunction to restrain that action merely they seek. Their only interest arises when the waters so diverted from a watershed in which they are not concerned, are wrongfully turned into another watershed on which their property lies, and are thus made a source of injury to their property. It is against the constant recurrence of such injury they have sought the aid
The decree of the court below dismissing the plaintiff’s bill is reversed and set aside, the bill is reinstated and the record is remitted to the court below with direction to enter a decree that will grant the proper relief in accordance with the principles here and heretofore determined by this court. The appellee for costs.