Crosland v. Borough of Pottsville

[521] Opinion, Mr. Justice Clark: Alter the argument of this ease, it was assigned to our lau; brother Trunkey for an opinion. After his death, the reassignment of it was overlooked and hence the delay in entering judgment. We will not enter into any extended discussion of the case, but will briefly state the grounds for the judgment we now enter. As the jury received binding instructions to find for the defendant, the testimony adduced by the plaintiff, with all reasonable inferences to be drawn therefrom, must be taken as establishing the true theory of the case on the facts. We assume, therefore, that Crosland gave to Col. Brown the right to conduct the surface water only from his premises through this drain into the Schuylkill river; that after the drain pipes were put down he turned into it the foul matter which came from his cess-pool and privy vaults, and that he sold a similar privilege to others; that thereby the drain instead of being used to conduct the surface and mountain water, as originally intended, was converted into a common sewer which caused the plaintiff’s house to be untenantable and it is believed unhealthy, and thus became a nuisance which the plaintiff claimed the right to abate. There is testimony also that the privilege given to Brown was experimental merely; if it should prove unsatisfactory, Crosland says, he had the right at any time to terminate it. The privilege must be treated, therefore, as a mere license which it was in Crosland’s power to revoke at his pleasure. It must be assumed also that the persons who were employed to adjust these pipes, and who reconstructed the sewer so as to again throw its contents upon the plaintiff’s premises, were acting under authority from the borough and were directed to do just what was done, and that the borough was responsible for these acts. There is abundant testimony to justify this inference, no matter what the facts may have been. The drain was put down by Brown, for his own convenience; the borough had nothing to do with it, but as it was laid in the street and suffered to remain and the borough exercised its authority to maintain it, we may infer that it was originally placed there by permission, or that its construction was after-wards assented to. Nor had Crosland anything to do with the drain, beyond yielding his assent that it might be laid in his [522] lots, to lead from the street to the river, and to conduct the surface water. It conferred only a limited right. When a person who is entitled to a limited right exercises it in excess, so as to produce a nuisance, it may be abated to the extent of the excess: Barclay v. Commonwealth, 25 Pa. 503; Taggart v. Commonwealth, 21 Pa. 527. But if the nuisance cannot be abated without obstructing the right altogether, the exercise of the right may be entirely stopped, until means have been taken to reduce it within its proper limits: Wood on Nuisances, 804; Addison on Torts, 269; Cawkwell v. Russell, 26 L. J. Exch. 34; Beard v. Murphy, 37 Vt. 99. If Brown abused the privileges which had been given him, by using these pipes as a channel for noxious and offensive matter, instead of surface water, and thereby created a nuisance, Crosland had an undoubted right, after due notice, to go either upon the premises of Brown, or on his own premises, and abate the nuisance by stopping up the drain, thereby preventing even the surface water from flowing therein, until Brown reduced his use thereof within the proper limits. Of course a person who undertakes to abate a nuisance, proceeds at his peril; he takes the risk of being able to show that the thing complained of was in fact a nuisance. If he errs in judgment, he is answerable in damages, and if a breach of the peace is involved, he is liable to indictment for the result. But, creating no breach of the peace, he had á right to abate this nuisance. The noxious matter which passed through the drain under the road, came from Brown’s premises; it was his (Brown’s) duty to convey it to the river, or to some other place where it would not become offensive and injurious to the public, and when he received notice that the drain was obstructed, it was his duty to stop the flow. It was not an unlawful obstruction of the drain which caused the public nuisance, it was the continued use of the drain by Brown after he knew it was obstructed, that caused the overflow into and upon the highway, and for this Brown was responsible. Brown’s recourse, if he had any, was upon Crosland; he had no right to discharge the sewer into the street. The borough authorities of Pottsville had no more right to open up the sewer through Crosland’s property than Brown had; their attempt to do so was wholly without authority, and in denial of the [523] legal rights of Crosland, who had a clear right in a lawful and peaceable manner to protect his property against the unlawful use of this drain by Brown, and against the unlawful acts of any other person who might come to aid in perpetrating this wrong upon him. Brown was the offending party and the officers of the borough should have given their attention to him; they should have obliged him to abate the public nuisance which he had set up and was steadily maintaining. We decide this case upon the force and effect of the plaintiff’s testimony, adopting his theory of the case as the correct one. When it comes to be tried again, and the evidence on both sides is submitted to the jury, the case may be presented in an entirely different light. The court erred, we think, in submitting the case to the jury with binding instructions to find for the defendant. The judgment is reversed and a venire facias de novo awarded.