The Scranton tribune. [volume] (Scranton, Pa.) 1891-1910, 1900-02-08

Following is the full text of the opin-
ion In the case of George a. Finn
against =. p. Carter and others, which
was handed down by Judge H. M. Ed
wards, Tuesday:
George w. Finn vs.. p +. Carter ct al.
The plaintiff in his bill alleges that he
is the owner of a tract of land consist
ing of several acres. and located on the
westerly side of the Lackawanna river.
In the city of Scranton; that this tract
of land has been plotted into lots OF
which buildings have been erected. and
that the defendants. who own a tract OF
land on the easterly side of the river,
have constructed stone wall inside or
preventing the water from flowing in the
accustomed and natural channel to the
imminent danger of plaintiffs property.
Tho defendants in their answer deny
the averments set forth In plaintiffs bill
and allege that the plaintiff has con-
structed an emhankment upon the chan
mel of the river to such an extent as to
endanger the land of the defendants.
After IL full and final hearing and n
personal inspection of the river and its
banks, We find the following facts:
by the act Of 2Gth of March. 1913.
part of the Lackawanna river including
the location in dispute in this case, was
declared to be navigable and IA public
highway. p. l.. 1913. p. 65.
2--The plaintiff In 1896 purchased a tract
of land situate on the westerly side Of
the Lackawanna river He plotted the
tract into lots and sold them to various
buyers who have built houses on them.
buildings on the plot and yet owns a
considerable portion of the tract.
CONDITION OF BANK.
3-The defendants own the land on the
opposite or castcrly side of the river
1iSClpSpS
| of the river banks as II was from thirty
| to fifty years ago. The extent of the
river involved in the present contention
| Is over six hundred feet and reaches
| from the Parker street bridge. shown on
| the map. down to the end of the stone
| wall erected by the defendants, the wall
| ending at a bend of the river where there
| is u high natural embankment.
| During the period mentioned. and for
some time since. both banks of the river.
| from bridge to the bend were ovcrfowed
Whenever there was am ordinary freshot.
| The banks were so low and the nature
| of the ground of such character that
the Overlooking of the land on both sides
was not looked upon as an unusual nc
| currence.
| This overflow was more noticeable on
| the westerly than on the easterly side of
| the river, because the level land on the
| westerly side covered a much widei
area, and because the ancestor of the
defendants in 1870 began to take measures
| to protect his land on the easterly side
from the ravages of annual freshets..
| 4-About the time mentioned. In 1876 or
| an axe factory and 4 mill on the east
| erly side, began building what is known
| as riprap wall alOrg his side OF the
river, extending II from year to year
| point not far from the bend.
There was also 4 wooden cribbing in
the same place before the wall was built.
| Two wing wallis were built starting from
| a
The purpose Of the cribbing. riprap work
| and wing walls was to protect race
that Carter had running through his
| land. Into this race "a portion of the
water of the river was diverted at a
| point below the Parker street bridge
| and emptied again into the river at a
point near the bend" already mentioned
For several years the race has been
| abandoned and the water which formerl!
flowed through the race has since found
its way into the channel of the river.
IMPORTANT OBJECTION.
5-The most important objection made
| by the plaintiff is to the erection of tl.C
| wall as 1t now appears at the point OF
fifty to one hundred feet from the bend
the way to the bend. or to the high nat
| ural embankment which made a further
artificial barrier unnecessary. 1t is this
| piece of wall more particularly that tn,
plaintiff claims is inside of the cdsterlS
| bank of the river, the erection and con
| tinuance OF which are liable to endangel
The plaintiffs property.
y consideration of the evidence. aided
by observation on the ground, convinces
me that the wall complained of by tn,
plaintf is not inside the low watel
mark of the easterly bank. The great
| preponderance of the testimony Is in ia
vor of this conclusion. | concede thai
1t Is difficult Ia fix with mathematical
precision the low water line on either sidC
| of the river from the Parker street bridge
to the bend, owing to the varying change.
and condition of the soil; but subsian
TALLY. and for all practical purposes, 4
can be ascertuincd, especially on til,
easterly side ] find as Il fact that til,
defendants in erecting the wall com
planned of, have not encrcached upon til,
channel of the LaCkawanna river.
G--I cannot lind from the evidence tina
there Is IL well-defined high water lin
on the easterly side. The indications o,
the ground are unsatisfactory. But /
is clearly apparent in reading the testi
mony that the water lines of the rive
are likely to recede. In the last few
years the flow of water is diminishing
There have been no freshets for severa