Philadelphia v. Provident , 132 Pa. 224 ( 1890 )

Per Curiam:

We have no doubt of the power of the board of health to declare and abate nuisances. So much was decided in Kennedy v. Board of Health, 2 Pa. 366. It was therefore competent for said board to declare the privies in question public nuisances; and, as they had a tendency to endanger the public health, the board acted strictly in the line of their duty in ordering them to be cleaned and purified, and in charging the owners of the premises with the cost thereof. All this is not disputed. But when the board proceeded further, and ordered water-closets to be constructed by the owners, we think they exceeded their powers. At least, no such authority has been exhibited to us, and we cannot assume it to exist without evidence.

The act of April 5, 1849, was called to our attention, but it does not meet the difficulty. It is true, it authorizes the board of health “ to remove the cause of all nuisances that now exist, or may hereafter be created.” But the cause of this nuisance was not the privy-well itself, but its contents. The mere hole in the ground was not a nuisance. When, therefore, the well was cleaned and purified, the cause of the nuisance was removed. It is true, it might become a nuisance again. In such event, it would require to be again cleaned. The order requiring the owners to put in water-closets, if sustained by this court, might be far-reaching in its consequences, and lead to serious and obvious abuses. Their power to do so, as before stated, has not been shown.

We are of opinion the court below did not err, in giving the jury a binding instruction to find for the defendants.

Judgment affirmed.