Sloan v. James, 13 Pa. Super. 399

13 Pa. Super. 399 | Pa. Super. Ct. | 1900

Opinion by

W. D. Porter, J.,

This was a bill in equity filed by plaintiffs, alleging that the defendants were discharging large quantities of filthy and polluted water from an artesian well, and offensive matter from a slaughter house into a stream, which, below said point of discharge, flowed through plaintiffs’ land, and that, as a consequence, the said stream which before had flowed through plaintiffs’ land pure and unpolluted had become and continued to be unwholesome, injurious and unfit for use. The bill prayed for an injunction and for general relief. The court below dismissed the bill and the plaintiffs appealed.

The bill did not allege that the flow of water in the stream was materially increased by the discharge of the water from the artesian well, nor that any injury resulted to the plaintiffs from the increased flow in the stream. No evidence was produced which indicated that the volume of the stream was appreciably increased by the addition of said water from the artesian well, nor that the lands of the plaintiffs were in any manner affected by said increased flow. To entitle the plaintiffs to an injunction restraining the increased flow of water in a natural channel, it was incumbent upon them to allege that the increased flow was or threatened to be injurious to their lands, and to produce evidence establishing said facts: Miller v. Laubach, 47 Pa. 154; Mining Company v. Water Company, 54 Pa. 164. The first, eighteenth and twentieth specifications of error are dismissed.

The -specifications of error from the second to the twelfth, inclusive, the fourteenth aud seventeenth, complain of findings of fact by the court below. Such findings of fact are only to be reversed in case of clear error, and a careful review of the testimony has failed to satisfy us that there was reversible error in any of said findings of fact, and all of said specifications of error are dismissed.

The thirteenth specification of error complains of the failure of the court to find upon the written request of the plaintiffs, that the lands of the plaintiffs at the time of the filing of the bill, and for many years previously, were used as a dairy farm and occupied by tenants of the complainants. This fact was practically conceded by the answer, and it could have done no harm if the court had found as requested, but neither did the mere failure of the court to find as requested injure the plaintiffs’ case. Under the pleadings and the testimony, the question to be determined was whether the defendants had been and were polluting the stream of water, and if they were not doing so the mere fact that the plaintiffs’ premises were used as a dairy farm became immaterial, and the specification of error is dismissed.

The fifteenth and sixteenth specifications of error offend against Rule 15, in that they each embrace more than one point, and specify the failure of the court to find in accordance with two distinct requests for findings of fact upon the part of the defendants, and said specifications are not to be considered.

The court having found the facts against the plaintiffs, it would have been error to grant the prayer of the bill, and the nineteenth specification of error is overruled.

The twenty-first specification of error relates to the imposition of costs upon the defendants, and it is not without merit. Under the evidence produced and impliedly from the findings of facts by the court, it appears that the defendants had been polluting the stream in question by the discharge of refuse matter from their slaughter house. In October, 1897, they had been notified of this fact by the plaintiffs, and had promised to abate the nuisance. They then made some temporary arrangement which they assured plaintiffs would remedy the evil, but it utterly failed to do so. In February, 1898, in response to further notice, the defendants altered the drain by putting in a trap, or device, by which the drainage from the slaughter house could be cut off from the stream, which they then claimed would be sufficient to protect the stream from pollution, but again the device failed of its purpose and the drainage from the slaughter house was permitted to escape into the stream. On the 24th of March, 1898, this bill was filed and the defendants in the eighth paragraph of their answer, practically admit that they had continued to pollute the stream down to March 15, 1898, and the evidence clearly establishes that fact. The court has found that since the 16th of March, 1898, the defendants have not permitted the stream to be polluted, and the evidence shows that on the 15th of March, 1898, such a change was made in the arrangement of the slaughter house as to entirely cut off its drainage from the stream. It thus appears that the plaintiffs had been suffering from the pollution of the stream and had, from time to time, received the promise of the defendants to remedy the evil, but those promises had not been fulfilled. At the time the bill was filed the plaintiffs had no reason to believe that the promises then made by the defendants were more to be relied upon than those which had preceded them, and there was, therefore, reasonable grounds for beginning this proceeding. We are of opinion that the plaintiffs should not be called upon to pay the costs.

Decree affirmed except as to the payment of costs; and it is now ordered, adjudged and decreed that the costs in the court below and upon this appeal be paid by the defendants.