The Scranton tribune. [volume] (Scranton, Pa.) 1891-1910, 1902-08-08
FIRST BLOOD
FOR COMPANY
DECISION RENDERED IN RAY
MoND wAsHERY CASE.
Judge Newcomb Discharges the Rule
for Preliminary Injunction.
Rights of the Company to Be De-
termined at a Final Hearing.
Washery Can Continue to Operate.
Hearing in the Case of Guernsey
Against Guernsey-Five Trespass
Suits Are Instituted.

Judge e. C. Newcomb yesterday rem
| dered an opinion in the case of the
Borough of Archibald against the Elk
Hill Coal and Iron company, discharg-
ing the rule for a preliminary injunc-
tion by which the borough authorities,
most of whom are striking miners at
tempted to shut down the washery.
Judge Newcombs decision is that the
conditions as revealed by the prelimin-
ary hearing do not warrant the inter-
vention of the "strong arm Of the law
In the summary manner petitioned for
by the plaintiff. The case thus goes
over until it can come up in equity
court. BY the time the case Is reache d
in equity court, the strike will likely
be at an end. and with the ending of
the strike will come the ending of the
case. Appended Is the opinion of Judge
Newcomb:
The defendant CON pany pumps water
from the Lackawanna river to its wash
cry on the hillside just westerly from
Main street in the borough of Archibald.
The water is used in the separation Of
coal from a large cum pile at that point,
and after being discharged from the
plant finds its way by the natural surface
drainage to water course which
energies from the defendants land at the
head of Il street now known as Bohemian
street. The water course then follows a
ditch along Bohemian street to Main
street under which 1t passes by a culvert.
Just beyond the easterly end of the cul-
vert 1t empties into the river. The plain.
tiff seeks to restrain this use of the ditch
on Bohemian street and the motion now
is for preliminary injunction.
SPECIFIC ALLEGATION.
The specific allegation of the bill as to
the effect of this Use of the ditch is that
large quantities of dirt and refuse are
deposited therein. causing it to become
obstructed and to overflow and thus to
become nuisance. This allegation is
not sustained by the evidence taken at
the hearing. The plaintiff. however, con-
tends that there is danger that small
children playing and travelling upon the
street near the ditch may fall into it, and
by reason of the volume of water flowing
from the defendants works they would
probably drown. In addition to this she
further takes the broad ground that
the mere presence of the water from
that source is a nuisance per Sc as the
street is public highway and the use OF
the ditch for anything other than nat
ural surface drainage is unlawful. regard
less of the question whether it affects
the use of the street or the health. COM
fort or convenience of the travelling pub
lie and the inhabitants of the borough.
+
On the 4th Of January, this year, when
the defendant company was ready to
begin operations. the borough. by ordi-
nance duly enacted, granted to the de-
fendant. its successors, lessecs and as
signs, 1.-THE right to enter upon the main
street at :. point south CT the Wayne
avenue bridge crossing the Lackawanna
river. and cross said street from land of
j. j. Scanlon. with three siX-inch water
pipes and ore-four-inch steam pipe: the
same to be laid under the street in such
manner as net to interfere with or i'm
pede the passage of persons and property
thereon. with right to renew. relay and
repair said pipes. or either of them, for
such time as said pipes may be necessary
In connection with the operation of the
Raymond washery of said company"
This grant imposed no conditions as to
the discharge of the water after it passed
through the waShery.
THE DISTINCTION.
Is the case so clear that we ought to
issue the writ prayed for? 1t is to be
remembered that there is a marked dis.
tinction between a preliminary injunc-
tion and an injunction after final hearing;
The former should only issue where the
right of the plaintiff is clear and unde-
niable and the danger of Injury to person
or irreparable injury to property is i'm
minent. Upon final hearing. when de-
fendant's answer is in. and the issue be
tween the parties exactly defined. their
respective rights can be determined with
certainty.
=
The defendants washery was erected
and equipped at an expense of $4,000 at
the foot of culm pile estimated to con-
tain ten million tons of merchantabe
coal. This process of reclaiming and win
ming valuable coal has come into use in
this region within recent years and has
become on important industry. The de-
fendant's venture is one of considerable
magnitude which might be paralyzed by
the granting of this special writ at the in
ception of the case.
But to guard against the possibility of
accident to children by falling into the
sluice we can make an interlocutory or
der retaining the main question to be de-
termined when the nleadings are all in
and upon full hearing.
1t Is, therefore, ordered that within
five days from the filing of this order the
defendant adequately and securely cover
the sluice heretofore constructed by 1t
along Bohemian street in the borough of
Archibald, and thereupon the rule for pre-
liminary injunction is to be discharged