Owens v. City of Lancaster ( 1897 )

Opinion by

Mr. Justice Green,

The evidence for the plaintiffs in this case tended strongly to establish several conditions as the result of the defendant’s user of the stream as an open sewer. First, that it created an increase in the natural flowage of the stream, so that in times of ordinary rains the banks of the stream were overflowed and the plaintiffs’ land was washed with sewage and offal, and the banks of the stream were broken down and washed away. Second, that considerable quantities of filthy and offensive refuse were allowed to accumulate on the banks and in the stream, and not only to obstruct the flow but to emit disgusting, unhealthy and injurious smells and odors, which extended to such a degree over the plaintiffs’ land and buildings as to render the same uninhabitable and prevent the owners from renting the same for any sum -whatever. The testimony was quite positive that the premises commanded a rental of $300 per annum in 1887, and afterwards a rental rapidly diminishing to 1890, when it ceased to have any rental value whatever, and from the latter date the property could not be rented at any price and stood idle. It was abundantly proved that this state of things resulted exclusively from the presence of decaying offal and offensive refuse along the banks and in the stream, and the extremely noisome and unwholesome odors, vapors and smells which pervaded the premises of the plaintiffs from the matter brought down the stream. Third, there was also evidence showing that the stream was obstructed so that the bottom was considerably elevated by the accumulations of sand, solid refuse and other substances, which the defendant did not clean out, but allowed to increase from year to year, and thus caused frequent overflows upon the land of the plaintiffs. It was alleged for the plaintiffs that these grievances were of .so serious and injurious a character as to amount to a continuing nuisance on their lands, and they therefore claimed damages from the defendant. Now the question whether these consequences resulted from acts and omissions of the defendant, and whether they were of the very serious character complained of by the plaintiffs, were questions which the jury alone could decide. They were pure questions of fact, and it is not possible to say that they were not supported by testimony. It is not necessary to review the testimony in detail, because the case abounds with it. The learned court below seemed to take the view that, because the city had used the stream as an open sewer for a long time, and had a right to use a stream for a sew'er, it was not responsible for any consequences of such user. But that this view is not sanctioned by the authorities is very clear. Thus in Butchers’ Ice and Coal Co. v. Philadelphia, 156 Pa. 54, we held that the city was liable to the owners of a wharf for injury to their property caused by deposits from their sewer. In Harris v. City, 155 Pa. 76, it was decided that the city was liable to a lot owner for maintaining a sewer mouth upon his lot. In Good v. Altoona, 162 Pa. 493, a city constructed a system of sewers the contents of which emptied into a stream, polluting it. The bed of the stream was of limestone rock, through the fissures of which the water found a well-defined passage, and fed two springs near plaintiff’s farm buildings. Tbe springs were rendered unfit for use. Plaintiff was also unable to obtain pure water by digging wells, as the whole underground supply was polluted. We held that the plaintiff was entitled to recover damages from the city. In the very recent case of Blizzard v. The Borough of Danville, 175 Pa. 479, the leading facts were quite similar to those of the present case. A borough adopted a small stream as an open sewer in 1860. An action was brought in 1891 to recover damages from the borough for obstructing the flow of the stream by the accumulation of 'sewage, so that the banks were overflowed and injuries caused to the plaintiff’s land abutting on.the stream. We held that where a municipality adopts a stream as an open sewer it is bound to keep open the channel of the stream, and to remove accumulations of filth, ashes or other material that obstruct the flow of the water, and throw it out of its banks upon the land of adjoining owners. There can'be no prescriptive right to neglect so plain a municipal duty. Our Brother Williams, delivering the opinion said, “ If the borough has simply drained into this stream and then given no attention to the effect of its action on the stream or on lot holders along its banks, and the stream has been choked or its channels obstructed in consequence of the character or quantity of the material drained into it, and injury has resulted to the plaintiff, the negligence of the borough authorities in not removing such obstructions and keeping the channel open, is the true ground on which the plaintiff’s right to recover must rest.”

We apprehend the same principle would apply to the injury inflicted by allowing offensive and injurious odors and smells to issue from the polluting substances discharged into the stream from the city sewers. We think that the plaintiffs’ testimony was quite sufficient to raise questions of fact on these several subjects to carry them to the jury, and that it was therefore error to grant a compulsory nonsuit. The assignments of error are all sustained.

Judgment reversed and new venire awarded.