Wanamaker v. Benzon
| Decision Date | 18 July 1916 |
| Docket Number | 340-1915 |
| Citation | 63 Pa.Super. 401 |
| Parties | Wanamaker v. Benzon, Appellant |
| Court | Pennsylvania Superior Court |
Argued December 9, 1915 [Syllabus Matter]
Appeal by defendant, from decree of C.P. Montgomery Co.-1914, No. 5 awarding an injunction in case of Mary B. Wanamaker and Rodman Wanamaker v. Alma C. Y. Benzon.
Bill in equity for an injunction. Before Swartz, P. J.
From the record it appeared that the plaintiffs filed the present bill and twenty-nine other separate bills against various landowners praying for a mandatory injunction for the discontinuance of the use of a covered stream as a sewer under Mather avenue in the Borough of Jenkintown, for other than surface drainage. The answer in this case and in twenty-nine others denied liability. By stipulation filed it was agreed that such final decree as should be entered in the present case by the appellate court should be entered in all the other twenty-nine cases. The facts are stated in the opinion of the Superior Court.
The court entered a decree awarding an injunction.
Error assigned was the decree of the court.
Affirmed.
Harvey Gourley, with him Owen J. Roberts, for appellant. -- The proof is clear that the borough owns and uses the sewer in Mather avenue and is alone responsible for the drainage which passes through it. Defendant and other citizens of the borough are within their rights in using the sewer: Wood v. McGrath, 150 Pa. 451; Blizzard v. Danville Borough, 175 Pa. 479; Glasgow v. Altoona, 27 Pa.Super. 55; Cumberland v. Vale, 18 Pa.Super. 501.
The construction of inlets to the sewer is evidence of its adoption by the borough for municipal drainage.
If the borough is answerable for its street drainage, it must necessarily be responsible for any contribution thereto from the dwellings of its citizens: Haus v. Bethlehem Borough, 134 Pa. 12.
The plaintiffs' laches bar equitable remedy to have the stream freed from pollution.
The action of the commissioner of the State health department is such as ought to lead the court to refuse relief in favor of the plaintiffs: Com. v. Yost, 11 Pa.Super. 341.
The alleged nuisance can be abated and plaintiffs' damage for such abatement be easily ascertained by the construction and maintenance of an appropriate sewer across their land in place of the present basin and three iron pipes.
Samuel H. High and Nicholas H. Larzelere, with them William L. Nevin, for appellees. -- Not even a municipality has the right to corrupt a stream of water by emptying fecal matter into it: Albertson v. Philadelphia, 12 W.N.C. 158; Martin v. Philadelphia, 26 W.N.C. 120.
Plaintiff's rights have not been lost by laches.
Before Rice, P. J., Orlady, Head, Porter, Henderson, Kephart and Trexler, JJ.
The facts in the case are not in dispute. There was a small water course fed by a spring which passed over the property of the plaintiffs and discharged into Tacony creek. Above the plaintiffs' property a syndicate purchased land, divided it into lots and upon these lots houses were erected which drained waste, including human excrement into the stream. About fifty houses so discharged their sewage into the water courses. The stream was covered and was included in a street known as Mather Road. The filth collected in the watercourse was carried to the land of the plaintiffs where the stream flowed into an open catch basin and produced noxious odors which threatened the health of the occupants of plaintiffs' ground, and in times of rain the objectionable waste was deposited on plaintiffs' lawn. In the language of the lower court, it caused " a continuing private nuisance on the plaintiffs' property, and along the whole line of the water-course." It seriously interfered with the plaintiffs' enjoyment of their property, and was a source of discomfort and danger. The plaintiffs are not seeking damages for any injury occasioned but are seeking to prevent a continuance of the nuisance.
There are four reasons set forth by the defendant why the court should not have granted the relief prayed for.
First It is contended that the Borough of Jenkintown adopted the covered watercourse and it thus became a borough sewer and the borough alone is therefore liable for the wrong done. As stated above the waterway was covered over by the syndicate which owned and sold the lots. It constructed a culvert or stone covering over the stream and ran a street along the same course as the stream naturally took, and dedicated this street to the borough, and the borough accepted the street. The borough made several openings in the covered drain for the purpose of surface drainage. Did this act of the borough charge it with responsibility for the underground conduit so as to render it liable for the act of the defendant in draining animal waste into it? The borough never adopted the underground stream as part of its sewerage system. In fact, in the entire borough the ordinary method of disposing of sewage was by means of cesspools. The conduit in question was not built or constructed by the borough, and the borough never exercised any control or supervision over it. The stream of water that passes through the covered water-course would naturally be augmented at times by surface water. Where the borough drained surface water into this conduit, it was merely putting the water to the place where it would have naturally gone. We cannot see that by this action the borough became responsible for the act of the defendant in the depositing of sewage into it. Had this been allowed to remain as an open waterway, the borough could have drained the street into it without thereby becoming...
To continue reading
Request your trial