Good v. City of Altoona

• Decision Date: 11 July 1894
• Docket Number: 94
• Citation: 29 A. 741,162 Pa. 493
• Parties: Peter Good v. Altoona City, Appellant
• Court: Pennsylvania Supreme Court

29 A. 741

162 Pa. 493

Peter Good v. Altoona City, Appellant

No. 94

Supreme Court of Pennsylvania

July 11, 1894

Argued April 16, 1894

Appeal, No. 94, July T., 1893, by defendant, from judgment of C.P. Blair Co., Oct. T., 1888, No. 118, on verdict for plaintiff. Affirmed.

Trespass for damages for polluting stream, springs and well, and creating nuisance. Before DEAN, J.

Plaintiff's evidence was to the effect that defendant emptied its sewage into Dry Gap run which flows into Mill run, which latter stream crosses plaintiff's farm, supplying water for the stock and feeding two springs. The country through which this stream flows is of limestone formation, and as is usual in such formations contains fissures and crevices through which running streams flow underground for indefinite distances. During high water Mill run has a well defined surface course from the city to and across appellee's lands. In low water, after Dry Gap run joins Mill run, the latter flows as a surface stream for several hundred yards, then sinks through crevices in the earth and continues underground for some distance, then emerges and flows upon the surface again and again sinks and re-emerges at irregular intervals before it reaches appellee's springs and flows across his farm. In its somewhat tortuous course from the junction of Dry Gap run to appellee's springs it passes over and through, in the manner above stated, lands owned by persons in the order following: Baker's heirs, Kinsel, Reamey, Kinsel again and then appellee. Previous to its pollution by sewage its waters were pure and wholesome; and it is a mountain stream of varying volume according as the season is dry or wet. Some thirty years before the trial of this case it was discovered that washing ore in Mill run, on the Baker farm, near Altoona, discolored the water in appellee's springs and rendered it unfit for use; sawdust also was found in the springs at an early day, when a sawmill was in operation on Baker's land along Mill run; and the height of the water in the springs depended upon that in Mill run, and whenever a freshet occurred, increasing the flow in the run, it washed the sewage accumulated in the underground channel into the springs and overflowed the run upon appellee's land leaving the filth deposited there.

The court left to the jury the question whether the springs were permanently polluted. [1]

Plaintiff's points were among others as follows:

"2. If the jury believe from the evidence that the city of Altoona by its system of artificial sewer drainage causes filthy and unwholesome house sewage -- contents of water-closets and slaughter-houses, to flow into and pollute a stream, whether of surface or subterranean flow, the use to which, in its natural and pure state, a riparian landowner, through whose land it flows, is entitled, he is entitled to damages for the injury. Answer: Affirmed, so far as the damage is permanent or continuous." [2]

"3. If the jury believe from the evidence that the city of Altoona by its artificial drainage from its system of sewage causes filthy and unwholesome sewage to flow into and pollute a running natural stream tributary to another stream, the use of which in its pure and natural state a riparian owner is entitled to, and by so doing the fountain or source of pure water springs on the farm of the plaintiff is polluted, and the water rendered unwholesome, dangerous to health and unfit for domestic use or stock, he is entitled to damages for the injury. Answer: This point is affirmed so far as the damage is continuing or indefinite as to duration." [3]

"4. That if the evidence satisfy the jury that the city of Altoona by its system of sewage into Dry Gap run which empties into Mill run, a pure stream, which has run through plaintiff's land more than forty years, as well as supplied, whether in part or wholly, fresh water springs, by surface or subterranean flow, and, by such sewage, rendered the stream unwholesome and dangerous to health, thereby creating a nuisance, as well as destroyed the springs thereon, the injury is of such a character as to permanently affect the land and depreciate the property for an indefinite period, and the plaintiff and owner is to be compensated for the diminished value of the estate. Answer: Affirmed, so far as injury is permanent." [4]

Defendant's points were among others as follows:

"1. The city had a legal right to construct and use sewers to carry off the sewage of the city; and in doing this it is not liable for consequential damages to private property, if there was no want of skill and care in the exercise of its lawful powers." Refused. [5]

"2. Dry Gap run flowing through the city was a natural water-channel, and the city had a right to empty its sewers into it for drainage, and only the riparian owners along it and Mill run into which it flowed had a right to complain of the pollution of the waters in those streams. Answer: If by riparian owners it is meant that the owners of springs, such as are alleged by plaintiff in this case to be injured, cannot recover, the point is denied. If this be not the meaning the point is affirmed." [6]

"3. As the plaintiff was not a riparian owner at the point or points where he alleges the water leaves the bed of Mill run, and percolates by unknown courses through the lands of three others, a distance of a mile and a half, and then enters his spring and pollutes it, he is not entitled to complain, has had no right violated, and cannot recover on that ground." Refused. [7]

"4. The streams which flow into plaintiff's spring by percolation may be lawfully cut off and used by others in the enjoyment of their rights so as wholly to deprive him of the water. If the lawful use of the water by others produces the same deprivation by unfitting it for use, it is a loss to which he must submit, and he is debarred from complaint and recovery." Refused. [8]

"7. The evidence shows the existence of a number of natural fissures or crevices in the bed of Mill run at a point of greater altitude than plaintiff's spring, and if the polluted waters of that stream find their way through these fissures by unknown subterranean courses to his spring, and injure it, he has not thereby a cause of action against defendant." Refused. [9]

"10. The action being in trespass for a private nuisance which may be abated or restrained by a court of equity, when plaintiff by a final judgment has established his right, the measure of damages in that view of it is not the permanently diminished value of the property, but only such damages as shall compensate him up to the date of the bringing of the suit. Answer: This point is denied; it assumes as a fact that a court of equity would restrain the defendant; this would depend on whether the injury complained of was, from the evidence, continuing or temporary in its nature and should be abated. We have submitted the evidence on this question to you." [10]

Verdict and judgment for plaintiff for $5,000.

Errors assigned were (1-10) instructions, quoting them.

The judgment is affirmed.

Aug. S Landis, Edward H. Flick, city solicitor, with him, for appellant, cited: Munn v. Pittsburg, 40 Pa. 364; Barry v. Lowell, 8 Allen, 127; Gould on Waters, §§ 148, 220, 223, 282; Acton v. Blundell, 12 M. & W. 324; Chasemore v. Richards, 5 H. & N. 982; Reg. v. Met. Board of Works, 3 B. & S. 710; Wheatley v. Baugh, 25 Pa. 532; Haldeman v. Bruckhart, 45 Pa. 514; Coal Co. v. Sanderson, 113 Pa. 126; Lybe's Ap., 106 Pa. 634; Upjohn v. Richland Twp., 46 Mich. 542; Schlag v....