6 A. 453 (Pa. 1886), 389, Pennsylvania Coal Co. v. Sanderson & Wife

Docket Nº:389
Citation:6 A. 453, 113 Pa. 126
Opinion Judge:Mr. Justice CLARK:
Party Name:The Pennsylvania Coal Company v. Sanderson and Wife
Attorney:Henry M. Hoyt, Henry W. Palmer (Andrew T. McClintock, Willard & Warren, J. M. & W. P. Gest with them), for plaintiffs in error. A. Ricketts for defendants in error.
Judge Panel:Before MERCUR, C.J., GORDON, PAXSON, TRUNKEY, STERRETT, GREEN, and CLARK, JJ. MERCUR, C.J., GORDON, and TRUNKEY, JJ., dissent.
Case Date:October 04, 1886
Court:Supreme Court of Pennsylvania
 
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Page 453

6 A. 453 (Pa. 1886)

113 Pa. 126

The Pennsylvania Coal Company

v.

Sanderson and Wife

No. 389

Supreme Court of Pennsylvania

October 4, 1886

         Argued: February 2, 1886

          ERROR to the Court of Common Pleas of Lackawanna county: Of January Term 1885, No. 389.

         This was an action on the case brought by J. Gardner Sanderson and Eliza McBriar his wife in right of said wife against The Pennsylvania Coal Company to recover damages sustained by her from the loss of a stream of water which flowed through her grounds and which was rendered entirely useless for domestic purposes by the defendants discharging mine water from their mines into it. Plea, not guilty.

         The facts of the case as they appeared upon the trial before ARCHBALD, J. are sufficiently set forth in the charge of the court and in the opinion of the Supreme Court.

         The following is the charge of the court, ARCHBALD, J.: This is an action brought by Eliza McBriar Sanderson against the Pennsylvania Coal Company, to recover damages for the alleged pollution of the waters of Meadow Brook by the defendant. The principles of law involved in this case have been settled by the several decisions of the Supreme Court already made in this case, (5 Norris, 401; 13 Norris, 302; 6 Out., 307.) The facts in the case, or the questions of fact upon which you will have to pass, are not many, although it has been necessary in order to throw light upon them to introduce a great number of witnesses who have been heard by you, and the discussion of the many facts that have been put in evidence to illustrate these several questions of fact which I shall submit to you. [It appears from the evidence, that in 1868 Mrs. Sanderson purchased some land in that part of the city which is now known as Green Ridge, with a view of erecting a residence there. Through a portion of this land flowed this stream, which is known as Meadow Brook. The fact that this stream flowed through the land was, as it appears, one of the inducements which led this lady to look at that spot, and to make that purchase for the purposes of a residence, in the hope that the waters of the stream might be utilized for domestic purposes, and other useful purposes about the ground. With a view to determine that fact, her husband, Mr. J. Gardner Sanderson, made an examination of the stream, following it up from where it ran through these grounds, all along its course, and noting its condition as he went. He followed it all the way up, found that it was covered over, as he says, more or less, with willows, hazels and other shrubbery that is customarily growing along a stream, and went away up to the Gipsy Grove swamp, and still further beyond that toward the Little Roaring Brook. He examined especially, as he says, to see if there was anything deleterious coming from any place about there that might vitiate the waters of this stream. He was satisfied, and this plaintiff, as it appears, was satisfied from that examination, that the water in the stream was pure, and that it would be fit for such uses and purposes as they designed to make of it.] Accordingly the various water-works and apparatus that you have heard described, were put in there; a dam was erected upon the land purchased of Van Fleet, in order to get a sufficient head; from that a conduit pipe was laid which led to the cistern and hydraulic ram; that, as you know, is a simple mechanical appliance frequently used for the purpose of raising water from a lower to a higher level, and often for just such purposes as it was put to, according to the evidence, in this case. From that ram the water was forced up through pipes leading to a tank in the attic of Mrs. Sanderson's house, and from there it was distributed through the house, to the boilers, for the purpose of being heated, and to the water-closets, and to a bath-room, and it was also taken to a steam apparatus, which was put in the house for the purpose of heating the house through steam radiation, as it is called. Still further down upon the stream, and within the very grounds of Mrs. Sanderson, a large dam was erected. This served several purposes, ornamental as well as useful. It was stocked with fish; galvanized iron screens were put at the head and at the foot of this dam so as to prevent the fish escaping, and from this was laid another pipe, also leading to an hydraulic ram, which forced the water upon the lawn for the purposes of irrigation there, and for the purpose of supplying a fountain. Also from this dam, as I remember the testimony, there were water-pipes leading to the barn, for the purpose of using the water there to water the horses and cattle; also to the house of Mr. Sanderson's gardener, for use there.

         They continued, it seems, in the use of this water, after the erection of the house, for some two or three years, when the character of the water, as they say, became changed, so completely changed as to be unfit for ordinary domestic use; they had to abandon it for washing and cleaning purposes, for culinary purposes, and in general for all useful purposes in the house; the fish were killed in the pond, and if I remember the evidence in 1874, it was abandoned finally for any purpose connected with the house.

         Now let us turn our attention to some of the other facts as they appear in the evidence. It seems about the same time, in 1867 or 1868, the Pennsylvania Coal Company, who owned large tracts of land near the head of this stream (some sixteen hundred acres, it is said) began excavating certain tunnels about the Gipsy Grove swamp with the intention of erecting a breaker there and making developments of the coal property. They first drove in 1867, I think one tunnel; and in 1868 other tunnels, until they finally had four tunnels opened there. These, if you believe the evidence, were opened until they struck the coal, the coal being piled outside the tunnel awaiting the erection of a breaker there. The company also sunk a shaft perpendicularly down into the earth, for the purpose of raising coal from a lower vein, and began building their breaker. That was built, I believe, in about the year 1870. They encountered water in the sinking of this shaft, and they had to raise that water to the surface. After they had reached the vein it was pumped from the mine, as opened to that vein, thrown upon the ground, or into a ditch and conveyed away, until it finally reached the waters of Meadow Brook somewhere in this swamp.

         Now the several questions of fact upon which you will have to pass are these: The first is, has Mrs. Sanderson suffered any loss? If she has, has that loss been occasioned by the acts of the defendant? If you find that also in her favor, then what is the extent of her loss, or in other words, what are the damages?

         Now, gentlemen, there can be very little question on the first fact; from the evidence, if you believe it, it would seem certain that Mrs. Sanderson has suffered loss. The question of how, or from what occasion, is a more difficult question, but if you believe the evidence here, she has not voluntarily abandoned the use of this water. She has been actually prevented, from its character, from using it for any of the purposes for which she had originally designed to use it. Now, then, what was the cause of this loss to her? Upon that question, gentlemen, you will have to consider what was the condition of this stream at the time she put her waterworks up there for the purpose of using the water from it. If you find that it was in a pure condition, or sufficiently pure for ordinary domestic use, that is one side. On the other hand, if you find that it was then vitiated, even though not observed by Mr. Sanderson, so vitiated or so surrounded by that which would eventually vitiate it, then so far as it was disturbed by these circumstances existing around it, at the time she began there in 1868, for that loss of the water, or the loss of the water occasioned by anything of that kind, there could be no recovery against this defendant.

         Now let us look at the circumstances bearing upon and surrounding the question of the purity of this stream. We have decided testimony that this stream, in its original condition, was a pure mountain stream, not very long in its course -- a couple of miles or more, if you believe the evidence, arising in this swamp above, from the accumulation of water there, flowing down through land more or less cleared, prevented somewhat from evaporation by shrubbery growing around its banks and along its banks; that there were fish in it, bullheads or catfish, eels, minnows and chubs, also originally trout, a fish, which it is well known, requires a very pure water to live and thrive in. That was its condition originally. Now was that changed at the time Mrs. Sanderson began her improvements there, and asserted her intention, by the erection of these waterworks, to use that stream? We have the testimony of parties that at about that time they made use of it; the testimony of several witnesses that it was soft in character, that they were able to drink it, except in warm weather when it got somewhat low. And Mrs. Robinson and Richard Robinson, her husband, who were in the employ of Mr. Sanderson, stated that they used it for ordinary domestic purposes; had no trouble with it; washing and cleaning with it, making tea and coffee, and using it for the ordinary purposes of the kitchen. Mr. Brundage, who lived along the stream, testified to about the same facts, also Mr. Long. Dr. Fordham made use of it for a while until he discovered a spring in his cellar. We have in addition to that the testimony of J. Gardner Sanderson and George Sanderson, and I think of Mr. Robertson, all bearing upon this question, that in the ordinary, condition of the stream it was of pure character, entirely fit for...

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