Fricke v. Quinn

Opinion by

Mr. Justice Mitchell,

There is really no controversy before us as to the facts of this case. The master found that the defendants had polluted the water and filled up the channel of Mill creek, not by ordinary exercise of riparian rights, but by excessive and unlawful acts in the mining and washing of coal, to the injury of the complainants as lower riparian owners. The learned judge below took the same view of the facts established by the evidence and stated it in the following forcible language: “ The conclusion stated, taking in as it does all of the defendants, is the irresistible inference from the testimony referred to by the master, and much besides that might be referred to. It is simply out of the question that the accumulations in the Mill creek about Port Carbon are to be accounted for upon any reasonable theory not necessarily involving the fact of actual and intentional deposits in the creek by the defendants of vast quantities of muck and culm, the noxious result of their recent washings of great piles of what formerly was considered refuse, from which certain small sizes of now merchantable coal are obtained.”

But notwithstanding the facts thus vigorously stated, the learned judge denied the complainants the relief sought, upon the ground that the issues were not made by the bill, and the findings of the master were therefore irrelevant and foreign to the case before him, or in the judge’s own words, “ the conclusion is that, whilst it seems clearly established that all of the defendants, and those standing in their shoes as purchasers with notice of the pendency of the suit, have been unlawfully unloading the refuse of their workings into the Mill creek, regardless of the rights of and heedless of possible injury to sub-riparian owners and communities, none of these plaintiffs have, in this proceeding, put themselves in a situation to insist upon a decree prohibiting a continuance of these indefensible acts, or compelling an abatement of their results.”

The case is thus practically narrowed to one of equity pleading. The bill is brief and couched in general terms, but the second paragraph sets forth that defendants are “not only filling up the channel or course of said stream, but are diverting it from its proper channel, impeding the proper flow of the stream, depositing large quantities of culm, muck and dirt in the bed and upon and over the legitimate banks of the said stream — ■ filling up the drains and sewer channels leading into the said creek or river course, to the great damage and injury, not only to the property of the complainants, but as well to the health of the inhabitants of said borough.”

Paragraph third further avers “ that prior to the depositing of culm and dirt into the said streams by the defendants above named the creek bed in each of said streams was low enough to receive the drainage of the inhabitants of the said borough, and the flow and current of the creek swift enough to carry the same away, but by reason of the acts of the defendants above named, the condition of such creek or river channels is such that the drain mouths are blocked up — the drainage is dammed back into the cellars of the inhabitants, and great damage is done to the property of the complainants, and their health, and the health of all the inhabitants of said borough, is seriously threatened thereby.”

While these averments are general and not clearly defined, yet it cannot be fairly said that they do not contain and set forth the substance of the injury complained of. It is the right of the riparian owner to have the natural flow of the stream reach his land in its natural channel, and in its natural condition. An averment that the channel is filled up or diverted, its bed raised so as to obstruct its current, and prevent drainage into it, is an averment of unlawful interference with complainant’s rights. The specific injury resulting therefrom should in good pleading be set forth with reasonable particularity, but this fault may be waived by failure to object to it in time, as will be noticed further on. And as to the averment of the deposit of culm’, muck and dirt, the master found that defendants had “polluted ” the stream, which is but another form of saying that they had deposited culm, muck and dirt in it, as the bill charged.

In regard to one of the complainants, Hemler, the court found that there was no evidence that he owned any property affected by the defendants’ acts, and as this appears to be correct, the bill was properly dismissed as regards him.

As to Fricke it is said that “ the master does not specify the manner in which (his) property is damaged,” and that the evidence shows that it was from the flooding of the lot at high water, depositing upon its surface culm, muck, etc., destructive of vegetation, and from percolations into his cellar due to the elevation of the bed of the stream. Of these injuries it is said there is no allegation in the bill.

With regard to the borough of Port Carbon it is also said that while 'certain evidence in the case, such as the flooding of a street, the obstruction of certain culverts and of a street drain, etc., might be treated as proof of injury to the property of the borough, if covered by the averments of the bill, yet there is nothing in the language of the bill that gives notice of it as a fact intended to be proved or relied on, the objection being that there is no specific averment that the property injured belongs to the municipality.

The cause of action set up by the bill, though as already said couched in very general terms, certainly contains in substance averments of injuries of tbe very nature found by the master to have been done by the defendants to the complainants. It is true they are not averred with the precision required in good pleading, but there is no claim that the defendants were thereby misled, or failed to produce proof which would have led to different findings by the master on the essential facts of the case, or the law applicable to them. In truth the objections do not appear to have been raised by the defendants themselves in any of their exceptions to the master’s report, but by the court on final hearing, after the case had been before tbe master for four years, and both parties had produced all their evidence and been fully heard on the merits. On the filing of the court’s opinion a motion for leave to amend the bill so as meet the objections was promptly made. The substantial cause of action was not proposed to be changed, but the amendment was to specify and define what the bill had left general and indefinite. Leave to amend was refused. It should have been granted. The refusal was the enforcement of highly technical objections, in a case which had passed the stage in which they were applicable. But, though the amendment should have been allowed, it is not now necessary. The bill is sufficient in substance to sustain a decree at this time. This court does not intend to encourage loose or careless or inaccurate pleading, but technical objections that do not touch the merits of the case, nor subject either party to unfair burdens or unjust results, should be made promptly or be considered waived. In the strictest days of common-law pleading there were many faults that were cured by verdict, and equity should not be less liberal to faults which are merely of form, after a result has -been reached on the merits.

The decree is reversed as to complainants Christian Fricke and the borough of Port Carbon, and injunction directed to be issued as recommended by tbe master. All costs to be paid by the appellees.