Mirkil v. Morgan, 134 Pa. 144

Mirkil v. Morgan

134 Pa. 144 | Pa. | 1890

Opinion,

Mr. Chief Justice Paxson :

In this case the master and the court below differed upon the facts. On the one hand, we have an elaborate discussion of the evidence by the master; on the other, a brief opinion by the learned judge, the substance of which is that the master found the facts against the weight of the evidence. Beyond this he has given us no aid in the consideration of the case.

The bill was filed to enjoin an alleged private nuisance maintained by the defendants. The latter are the owners or lessees of a factory building, used for the purpose of refining and cleansing hair. The plaintiff is the owner in fee of three dwelling-houses adjoining said factory building, and he alleges that, by reason of insufficient drainage, the water used by defendants, in the process of preparing the hair, escapes from said drains, percolates through the walls into the cellars of his houses, rendering them unhealthy and unfit for occupancy; that by reason thereof his houses have remained idle for a portion of the time, with loss of rents, and injury to his said buildings. After a review of the testimony, the master found: “ Upon a review of all the testimony, the master decides that it is not certainly proved that the presence of water in the plaintiff’s cellars, as complained of, is due to the imperfect construction of defendants’ drain, or want of repair thereof, or the negligent, careless, or improper use thereof, as charged in the plaintiff’s bill; and, so far as this part of plaintiff’s bill *155is concerned, the result of the proofs in the case is to leave the matter, at the best, in a doubtful state, with strong reasons to believe that part, at any rate, if not ail, of the water in plaintiff’s cellars does arise from natural causes. This is fatal to the plaintiff’s bill upon this branch of his case, for certainty and precision are required before equity will interfere.” The master, therefore, concludes that it is not a- case for equitable relief, and cites, in support of his views, Richards’s App., 57 Pa. 105; Huckenstine’s App., 70 Pa. 102; Sparhawk v. Pass. Ry. Co., 54 Pa. 401. The learned master was clearly right upon the law. While a court of equity will sometimes restrain in a case of a private trespass, it will only do so where the right is clear. Where the facts are disputed, and the right is not clear, the plaintiff must first establish it at law. In Parker v. Winuepiseogee etc. Co., 2 Black 545, it was held that an objection that complainant has not established his right at law, or that it is doubtful, and therefore not enforceable in equity, goes to the jurisdiction, and may be raised by the court itself at any time, though not raised in the pleadings or asserted by counsel. In our own. state, we have authorities without number upon this point. It is sufficient, in addition to the cases cited by the master, to refer to Mowday v. Moore, 133 Pa. 598, decided at this term, and to New Castle v. Raney, 130 Pa. 546.

Was the master also right upon his facts ? Where the findings of the master are approved by the court, we have little difficulty. In such cases, clear error must be pointed out. It is not enough that there is a conflict of testimony. In such instances, the master is in a better position than either the court below, or this court, to weigh the evidence and decide intelligently upon it. In this case the master was also examiner, and had the witnesses before him. He had the advantage of their manner and appearance to aid him in arriving at the truth. While we hesitate to differ from so able a jurist as the learned president of the court below upon the facts, we are yet sensible that we have equal advantages with him in arriving at the truth. In either case, we have to take the testimony as it appears in cold type, without the benefit of having the witnesses before us face to face. Fortunately, it is not so much a conflict of evidence, in this case, as the deductions to be drawn therefrom.

*156We have examined the testimony with much care, and are of opinion that it fully sustains the findings of the master. So far as human testimony can establish anything, the drainage of defendants’ mill is as perfect as mechanical skill can make it. When complaint was made the defendants had it examined carefully, and it was found in good order. The fact, however, remains that water came into the plaintiff’s cellar, apparently from defendants’ property. Several witnesses have so testified, and we assume that they have spoken the truth. But it does not follow that it came from the water used in preparing the hair, or by reason of any defect in the drainage. On the contrary, the significant fact appears that this flow of water is not steady. Benjamin Hastie, a tenant of one of the plaintiff’s houses, and the first witness called by him, stated: “ No water in the cellar now, nor has there been for.two months.” Another of plaintiff’s witnesses testified: “In July there was a fortnight that it (the cellar) was dry.” The testimony was uncontradicted that the flow of water was intermittent. Yet the mill was in operation daily, and if the water came from the mill by means of defective drains, there must have been a daily flow of water into plaintiff’s cellar. This is as certain as the law of gravitation, or that water will seek its level. We must look elsewhere, therefore, for the cause of the flooding of plaintiff’s cellars.

Fortunately the evidence gives us all the information necessary to a solution of the difficulty. The defendants’ mill was constructed without a cellar under it. There is nothing but the necessary foundations for the walls and machinery. The plaintiff’s houses have cellars under them, and the cellars are several feet lower than the foundations of defendants’ mill. The site of the mill, of the plaintiff’s houses, as well as of many other houses in the immediate neighborhood, was made ground. It was originally low; a kind of basin, into which the water flowed from at least two directions. It was filled up with dirt and rubbish dumped there, as is the constant practice in the case of abandoned briclc-yards and other low places near, a large city. When it became filled up in this manner, it would absorb water like a sponge, and, having a tight subsoil, the water would remain there until it dried out, or found a vent in some way. It held water like a dish. When defendants’ mill was *157built they found the water within a few feet of the surface, and had great difficulty in getting sufficient foundations. The same thing occurred when the plaintiff built his houses. The water came into his cellars before they were finished, and had to be pumped out, and it was proved that nearly all the cellars in the neighborhood were affected in the same way. The water came in, and had to be pumped. In some instances cellar drains have been constructed and connected with the sewer, and since then the owners have had no trouble with damp cellars. It is easy to see, therefore, how the water could have come from defendants’ property without any defect in the drains. As there was no cellar under the mill, the soil would naturally absorb the rain-water, and the latter make its way underneath to the plaintiff’s cellar. It was urged, however, that the water which came into the cellars from defendants’ side resembled the water which was used in the machine for cleansing the hair. It was discolored and greasy to some extent, and looked like lime water. This is an argument, but as a fact it is not conclusive, and, in view of all the evidence, is not even probable. This basin, as before observed, was filled up with all kinds of refuse; a portion of it probably was the débris of old buildings which had been torn down, old plaster, and the like. This would naturally have its effect upon water confined there for weeks or months, and might well give it the appearance referred to. It would naturally take up the impurities with which it came in contact.

After careful consideration of the testimony, our conclusion is that the water which flows into the cellars of plaintiff’s houses comes from natural causes, and is not the result of any act of commission or omission of the defendants. The plaintiff has not suffered any damage from water with which he has a right to charge the defendants. The alleged injuries from the noise of the machinery, and the jarring caused thereby, do not require discussion.

The decree is reversed; the first report of the master confirmed, and the bill dismissed; the costs to be paid by the appellees.