Glasgow v. City of Altoona

• Decision Date: 17 January 1905
• Docket Number: 148-1903
• Parties: Glasgow, Appellant v. City of Altoona
• Court: Pennsylvania Superior Court

27 Pa.Super. 55

Glasgow, Appellant v. City of Altoona

No. 148-1903

Superior Court of Pennsylvania

January 17, 1905

Argued October 29, 1903 [Syllabus Matter]

Appeal by plaintiff, from judgment of C.P. Blair Co.-1899, No. 75 on verdict for plaintiff in case of James P. Glasgow v. City of Altoona.

Trespass to recover damages for injuries resulting from the pollution of a stream. Before Crawford, P. J., specially presiding.

The facts appear by the opinion of the Superior Court.

The court charged in part as follows:

[What is the character of the injury inflicted on him by such pollution as may be directly attributable to the city? In the light of all the facts before you is there any practicable or feasible means at the disposal of the city by which it may abolish the injurious results it has brought to the plaintiff? If so, the law requires that it make use of those means; for in the exercise of its rights it must do the least possible injury to the rights of others. If in its natural location or present situation the city can without unreasonable cost and trouble secure another outlet for the sewage emptied into the river at the old gas works, and thereby cut off the pollution at the point where it enters the stream, or if with the pollution of the sewage in the water it is possible either to deodorise or render it harmless, or if by any practical and reasonable method it can be transported over and beyond the plaintiff's land where, by the natural facilities of the stream or any artificial means adopted it can be carried away, or divested of its injurious qualities, the city is bound to see that this is done. If in any of the ways mentioned the problem of the sewage disposal can be solved by the city without creating and continuing the conditions complained of by the plaintiff, then a remedy is at hand, and the city must make use of it. In such case the injury of the plaintiff would not be permanent and he could only recover such actual damages as he may have sustained within six years to the bringing of suit. These would include such incidents of loss or expense as may have actually resulted to him within that time, such as destruction or damage to crops, any necessary outlay of money directly occasioned by such pollution. Whatever may be his loss in that line can be ascertained and for that he should be reasonably and justly compensated.]

Plaintiff presented these points:

6. The mere fact that it is possible by some known method to purify the sewage of the city of Altoona, as it flows into the Little Juniata river and pollutes the water of the same, is no answer to the plaintiff's claim for injury to his property, caused by the permanent and continuous character of such pollution, as the defendant has failed to show that it has adopted, or is about to adopt, any such method or methods, with a view to correcting the wrongs complained of by the plaintiff. Answer: This point is affirmed, unless the jury find that it is possible and practicable, under existing conditions, to abolish the injurious conditions complained of; in that case they must do so.

7. The city of Altoona, defendant, having shown its knowledge of methods in existence for more than twenty-five years for the disposal of sewage, so as to prevent injury or damage to riparian owners on streams into which its sewage flows, and having failed to dispose of its sewage from its first, second and third sewer districts, which discharge into the Little Juniata river eastward, by the adoption and erection of such known methods, is guilty of negligence and is answerable to the plaintiff, as a riparian owner on said stream, for any damages which he may have sustained by reason thereof. Answer: The city would be answerable to the plaintiff, as we have already stated, if it has failed to prevent actual loss to him that it could have reasonably prevented, and should compensate him for permanent injury, if they have done the best they could do under the circumstances, with this sewage.

8. The failure of the city of Altoona, defendant, to adopt well-known methods for the disposal of its sewage in the first, second and third sewer districts, which discharge into the Little Juniata river, but permitting the same to increasingly flow therein, to the injury of riparian owners along said stream, inter alia, the plaintiff, the jury may conclude that the said city does not intend to adopt any such known methods for the disposal of its sewage, and that it intends to continue the use of the Little Juniata river for sewage disposal in the future as it has done in the past. Answer: The city must abate nuisances like that complained of if means are at its hand to do so. It is not a matter of what the city intends to do, but what they reasonably can and ought to do.

Defendant presented these points:

1. The plaintiff is only entitled to recover such actual damages as the evidence shows that he sustained through the pollution of this stream for six years prior to August 19, 1899, the date of the bringing of this suit. Answer: This point is affirmed as far as actual damages are concerned.

12. If the pollution of the stream can be stopped the jury must assume that it will be stopped. Therefore the plaintiff cannot recover damages for any permanent, indefinite depreciation in the value of the plaintiff's farm, because such pollution will not be permitted to continue; it must be stopped. Answer: Affirmed.

Wm. L. Pascoe of Stevens & Pascoe, with him O. H. Hewitt, for appellant. -- In similar cases, this court has declared it essential for the plaintiff to aver and prove " that the injurious conditions are reasonably certain to be permanent: Hoffman v. Coal Co., 16 Pa.Super. 631; Bailey v. Coal Co., 20 Pa.Super. 186.

The measure of damages is the cost of remedying the injury, unless such cost exceeds the value of the property injured, in which case the value of the property becomes the measure of damages: Welliver v. Penna. Canal Co., 23 Pa.Super. 79, 84; Lentz v. Carnegie, 145 Pa. 612.

Juries are allowed to act upon probable and inferential as well as direct and positive proof: Hartman v. Incline Plane Co. 159 Pa. 442; Allison v. Chandler, 11 Mich. 542.

Thomas H. Greevy, city solicitor, with him George B. Bowers, for appellee. -- This case is ruled by Good v. Altoona, 162 Pa. 493.

Before Rice, P. J., Beaver, Orlady, Porter, Morrison and Henderson, JJ.

OPINION

BEAVER, J.

Plaintiff's amended statement alleges his ownership in fee of a certain farm and sawmill property, situate in Antes township, Blair county, having thereon erected a dwelling house, tenement house, barn, water power, sawmill and other necessary buildings, part of the said farm being cleared and highly cultivated and the larger part heavily wooded with timber suitable for sawing into lumber and convenient to the sawmill aforesaid; that the Little Juniata river, a nonnavigable stream, runs through its entire length; that, prior to the acts of the defendant complained of, the river added greatly to the beauty, usefulness and value of his property and to the attractiveness and desirability of his dwelling house as a home and place of residence; that its waters were pure healthful, abounding in food fish, were suitable and convenient for all domestic, dairy, farm and ornamental purposes, and when confined by a dam which plaintiff constructed across said river and conveyed therefrom by a race dug by him, furnished convenient and ample...