250 Pa. 559 | Pa. | 1915
Opinion by
The plaintiff filed this bill to enjoin the defendant coinpany from.increasing the height of its dam so as to overflow or injure plaintiff’s land and water power. Defendant admitted, and the trial judge found as a fact, that by reason of flash boards, placed at certain seasons of the year upon the top of the dam, the water is dammed up and backs upon the plaintiff’s property to a depth of from two and a half feet up to four and a half fbet, and covers at times about five-hundredths of an acre of land. The court below held that plaintiff was
Counsel for appellant also argue that the plaintiff was guilty of laches, and has forfeited his right to equitable relief by standing by, and without objection, permitting appellant to spend large sums of money in the preparation and erection of the. flash boards. This contention seems to lack foundation. In fact, it is based entirely on the testimony of appellant’s superintendent that “the cost of the collapsible boards arrangement, together with the equipment to utilize it, is approximately $100,000.” But there is nothing in the evidence to show that either the plaintiff or his predecessor in title knew that appellant was preparing to make the proposed addition to his dam, or was spending any money for that purpose. The flash boards were first erected for operation on August 26, 1911, and six days later, the grantor of plaintiff by his attorney wrote to appellant, making objection to the use of the boards, for the reason that they had flooded his land, and threatening to take steps to protect himself in the matter. The boards remained up, either wholly or partially, until the early part of October, in that year, a few days after plaintiff acquired title, and there is no evidence that they were put up again until after the date when the present bill was filed, June 11, 1912. It is averred in the bill that appellant was about to begin to raise the dam to an additional height of three and a half to five feet, and that by such an increase in the height plaintiff’s lands would be flooded by back water and in large part rendered valueless for the purpose of their intended use. The trial judge very properly said “upon this conceded state of facts, it seems to be going too far to charge the plaintiff with laches.” In Alexander
The assignments of error are overruled, the decree of the court below is affirmed, and this appeal is dismissed at the cost of appellant.