Commonwealth v. Stevens ( 1897 )

Opinion by

Mr. Justice McCollum,

Tins is an appeal from the decree of the court of common pleas of Blair county enjoining the defendants until further order from erecting a wall in a stream which passes through the borough of Tyrone in said county, and is known as the Little Juniata. Two of the defendants are the owners of a lot, in said borough, which extends to the bank of said stream, and along it for a distance of one hundred and thirty feet. In the summer of 1894 they employed the other defendant to erect a wall in the stream opposite their lot, and he was engaged in the performance of the work when the proceedings to prevent the con summation of it were instituted. The material complaint in the bill for an injunction was that the erection of the proposed wall would narrow the channel of the stream, and in times of freshets and floods cause the water to overflow a considerable portion of the borough to the injury of the property and health of its inhabitants. This complaint was met with a denial by the defendants that the risk of injury from floods and freshets would be increased by the wall, and with an averment that such risk would be reduced by it. The court, however, was convinced by the evidence in the case that the complaint was well founded, and that the wall would constitute a public nuisance.

The findings of the court under the new equity rules are like the findings of a master under the old practice. They will not be set aside on appeal if they appear to have been authorized by the evidence. An apparent preponderance of testimony in support of the appellants’ contention is not sufficient to condemn them, because in the finding of facts from evidence the credibility of the witnesses is an important factor, and of this the court below had better opportunity to judge than is given to us on appeal. In considering a specification of error which calls in question a finding of fact by the court we must not lose sight of the familiar principle or rule applicable to the report of a master or to the verdict of a jury. With this rule in view we have carefully examined and considered the testimony applicable to the issues of fact in the case before us. The findings based upon this testimony appear to be well sustained by it. It authorized and it fairly supports the answers to the defendants’ requests for findings of fact.

The defendants claim that they cannot be lawfully enjoined from erecting the wall at the point in the stream where they have located it until it has been determined in a common law action that they have no right to build it there. The reason given for the claim is that the evidence in regard to their right and the effect of the wall upon the overflow in times of freshets' and floods is conflicting. They cite as justifying their claim: Newcastle v. Raney, 130 Pa. 562; Mowday v. Moore, 133 Pa. 612, and Wood v. McGrath, 150 Pa. 458. These cases were brought to the attention of the learned judge of the court below, and were plainly and satisfactorily distinguished by him from the case at bar. All that we need add to his opinion on this point is that the borough of Tyrone has a clear right under the act of June 8, 1891, P. L. 210 to widen and deepen, within its limits, the channel of the Little Juniata, and to prevent the erection of any wall or other obstruction therein which will increase the danger from floods and freshets to the property and lives of its inhabitants. The right to widen and deepen the channel of the stream necessarily includes the right to appropriate legal process to prevent interference with the exercise of it. The widening of the channel in accordance with the provisions of the ordinance of September 3,1894, will require the removal of the wall the defendants propose to erect. The erection of the wall would therefore subject the defendants or the borough to an expense that may well be avoided. We must presume in the absence of evidence to the contrary that the ordinance was passed in good faith, and that the borough authorities intended to commence and complete the projected improvement as soon as practicable. That the learned judge of the court below so interpreted this action is manifest from what he said in his supplemental report. There is no visible warrant in this record for a different view of their purpose in passing the ordinance. We have concluded therefore upon a careful con'sideration of the case to affirm the decree continuing the injunction, subject however to such modification of it by the court below as is indicated in said report as proper, if the borough refuses or neglects to prosecute with due diligence the work of widening the channel of the stream, in substantial conformity with its ordinance of September 3, 1894.

Decree affirmed and appeal dismissed at the costs of the appel lants.'