The evening herald. [volume] (Shenandoah, Pa.) 1891-1966, 1897-09-06

son Of the stencil and foul odors arising from
the polluted water.
Z. This stream, or Spring House Rum as
1t has been called, has its source in RingtOwn
mountain, and flows in a southeasterly di-
rection through the borough Of Shenandoah,
and is the natural drainage for about one
fourth Of the said borough, now town of
about $1,000 inhabitants
IL is a natural stream and before the bor-
ough was built up along its banks the
water shed which it naturally drains was a
stream Of pure running water.
8. As the town was built up the owners of
lots through which IL flowed walled up its
banks and covered it over, thus forming q
culvert through which it discharged its
waters. The borough authorities also caused
1t TO be walled in and covered where il
crossed the public streets and alleys of the
town. so that at the present time almost the
entire length Of the stream, where IL flows
through the borough, is walled in aud covered
over. In its course through the borough
there are inlets at the streets and alleys
where it receives the natural drainage Of the
part of the town through which it flows.
Private citizens have erected privies and
Water-closets over it, and have with the per
mission of the Town Council constructed
sewers that empty into it, so that the
waters of the stream are polluted, foul and
filthy reeking with human excrement and
other filth. The water that is collected from
the streets and alleys is the natural drainage
of the water shed from falling rains and
melting SHOWS, except in so far as it has been
augmented by the use Of the artificial supply
OF water with which the town is supplied.
o. Catharine Flynn caused stone wall to
be built across the west end of her lot and
put an eight inch terra Gotta pipe through
this wall and extended it through and over
her lot where the former drain had been.
NJ. - IL 3 ~.
water that flowed down through the channel
Of the stream caused it to dam back and form
a pond or lake which is denominated lake
Flynn" on the adjoining lot or lots Of ground
and to over flow them and fill the cellars Of
adjoining and neighbOring houses with the
filthy and foul water which came down said
stream, and thus creating the alleged nuis-
ance which the Chief Burgess under the
direction of the Town Council of the Bor-
ough of Shenandoah attempted to, and
threatened to abate, by tearing down the stone
wall built across the west end of Mrs. Flynn's
lot and wholly upon her own land and which
CathaTine Flynn by this bill seeks to enjoin
them from doing.
10. The stream known as Springhouse
Run has never been taken and appropriated
by the borough authorities for a sewer.
DISCUSSION.
1t was argued by counsel for Mrs. Flynn
that the ancient course and natural channel
of SpringhOuse Run did not pass over OF
| through the lot of ground now owned by
plaintiff but that it flowed across the west
end of the lot as originally laid out and then
through lands lying south of her lot. There
was some evidence tending 10 show that such
was the fact but it was not clear or salts
factory. Nor is it material to the decision of
this case whether such was the fact or not
When Thomas j. Mullaby owned the entire
lot number in block number 45 in 1887 or
1888 he made the dram and built the wall
on its sides and conducted it over his
| lot of ground where it now is Those who
| purchased from him bought the land subject
/ to this servitude or easemGnt. 1t does not
appear that any complaint was made by ad-
| joining owners or lower riparian owners that
the stream had been diverted from its natural
course by Mr.. Mullahy and he testifies that
| he did not change it. So that under the
evidence 1 am unable to find that the natural
course of the stream had been changed. The
| principal cause of complaint on the part OF
Mrs. Flynn is that privies and water closets
! have been erected over said stream so as Ia
| empty directly into il. This has been done
by private individuals; but there is no evil
dence to show that any of them were SC
erected by license from or authority of the
Town Council, and also that the Town Coun
Gil have permitted drains to be dug and
sewers constructed by private citizens and
the contents of cesspOOls and water closets
and sewers and discharged into said stream
pOlluting the water and rendering it foul
and noXious and from which by reason
thereof there arises an unbearable stencil and
also increasing the volume Of water which
flows through said channel. But has she a
legal right to complain of this2 A borough
has right to make a sewer empty its drain
age into natural stream even though the
effect of this is to increase the fowagt
Trckett on bOrOughs ser. 3ls Mum VS. The
Mayor of Pittsburg 40 Pa. 1854. And it may
also permit private citizen to dig up tbs
street and lay drain pipe into it for the pur
pose of carrying off the surplus water from
their buildings Wood VS. McGroth $50 Pa 451
If therefore the flow of water was somewha
increased Mrs. Flynn would have no right tt
obstruct its passage through this channel
1t would only be because of an unreasOn
able increase In the flow of water tina
she would have just cause of complaint
And the evidence does not establish the fac
that the eight inch pipe which she laid from
the stone wall over her lot to limerick stree
is sufficient to carry the water which natur
ally flows down said stream without any in
crease in volume whatever. Her right to OBJ
struct the flow Of the water in the manner
she has is by no means clear. The evidenc,
is contradictory. No irreparable injury viii
be done the plaintiff if the wall is torn down
And she has an adequate remedy at law. Il
the Chief Burgess, under the direction Of the
Town Council without legal right tears dOwI
her wall and iniure her property she can re
) cover in damages the loss she thereby sustain'
, and juries iR such cases usually award a sufi
cient amount to fully compensate for the in
! jury done. The case is not one that calls fo
the exercise Of the Equitable power of tn
Court
But as the evidence shows that the ALLEGED
} nuisance could be abated by building a sewe
on Centre street and extending it alOnl
z limerick street to where the sewer now is, a
a moderate cost it might be we'll for tn
Borough Council 10 consider the advisabilit,
! Of pursuing that course as the safest AM
! best way of adjusting the difficulty, and il
the end the least expensive
: The bill must be dismissed.
, And now September 1st., A. d., 1897, in
, junction refused and bill dismissed at tn
S cost of the complainant.
r By the Court
JEREMIAH LYONS,
o Pres't Judge 8lst Dist,
Specially Presiding.
? Attest LANES R. DEEGAN, Prothy.