Wilcox v. Cate (Vt.)..

Willard, Town of Westminster v. (Vt.). Willey v. Carpenter (Vt.)..

White v. Harden (Pa.).

White v. Town of Portland (Conn.). White, Lockwood v. (Vt.).

White, Sill v. (Conn).

Whitman, Camp v. (N. J.).

Whitton v. Milligan (Pa.).

Wilder v. Stanley (Vt.)..
Wilder, Bedell v. (Vt.).

.1049 Wood v. Standard Mut. Live-Stock Ins.

917 Woolman, Adams v. (N. J.). 22 Worthington v. Rich (Md.). .1105 Wright v. Taplin (Vt.).. 189 Wright v. Wright (N. J.). 589 Wright, Hynes v. (Conn.). Wylie, Donnell v. (Me.)..

417 298 Yard, Chidester v. (Pa.).. 29 Yerkes v. Richards (Pa.). 67 Yewdall, Krumbhaar v. (Pa.). 952 Yingling v. Miller (Md.).

1094

40 Witters, Lyon v. (Vt.)..

312 Woddrop v. Weed (Pa.).

342

Co. of Reading (Pa.).

639 Woodruff v. Marsh (Conn.). 396 Woods v. Ronco (Me.)..

1110

588

375

103

846

1056

451

403

1105

166

642

1092

662

221

219

491

CITY OF SCRANTON v. SCRANTON

STEEL CO.

(Supreme Court of Pennsylvania. March 6,

1893.)

HIGHWAYS-EVIDENCE-OBSTRUCTION OF STREAM. 1. In an action by a city to enjoin defendant steel company from depositing refuse matter in a river flowing through the city, by which it was alleged the water was backed up, and caused to overflow public streets, the evidence is sufficient to show that the streets flooded were public streets, when one witness testified that the overflows have interrupted travel on public streets, and, after naming particular ones that had been obstructed, said, "These streets are public traveled streets," and the city engineer, speaking of the locality flooded, said: "The streets are opened to travel. W. avenue is one of the principal thoroughfares of the city," and other witnesses testified that public travel on the streets was stopped.

2. Where streets are opened, and traveled by the public, and the city claims control over them, and defendant does not allege or attempt to show any right to obstruct them, evidence of a formal acceptance of the streets by the city is unnecessary.

3. The bill alleged that the river is a public highway, but it appeared that it was declared a public highway by the legislature for certain purposes, as the passing of rafts, boats, or other vessels, while the city is authorized to establish, alter, and change the channels or water courses; to wall them, and cover them over, establish public cisterns, aqueducts, etc.; but there was no evidence that the city had ever exercised such authority, or acquired any rights thereunder. Held, that if relief was to be given the city, it should be not because of any control it might, but has not, exercised over the stream, but for the invasion of her right to use the public streets of the city for purposes of public travel.

4. The evidence showed that the material deposited by defendant had encroached on the stream, straightened and narrowed the channel, and also that a railroad company owning land on the opposite side of the river had closed up one channel,-the river having divided a short distance above,-and otherwise narrowed the course of the stream. The company had then placed piers in the narrowed channel for the construction of a bridge, which impeded the flow of the river still more, and it was shortly after this that the streets were flooded. After the flood the company took down half of the piers, since which time the streets have not been affected, and before the erection of the piers the streets were never flooded, except at times of extraordinarily high water. Some witnesses attributed the flooding entirely to the filling done by defendant; others, to the closing of the channel on the cther side of the river; v.26A.no.1-1

and others, to the erection of the piers and abutments for the bridge. Held, that it was reasonable to conclude that the flooding was caused by the piers and abutments, and not by the filling done by defendant.

5. While, in consideration of the above facts, defendant should be enjoined from making further encroachments on the river, yet it should not be compelled to remove the matter already deposited in the channel, in view of the fact that defendant's title was not questioned except by the allegation in the bill that the river was a public highway; that the city has no right to the river, and no standing in court, except as her interests in the public streets are affected, and it appearing that the filling already done is causing no injury to the streets now, and does not threaten any in the future.

Appeal from court of common pleas, Lackawanna county; Fred. W. Gunster, Judge.

Action by the city of Scranton against the Scranton Steel Company to enjoin defendant from depositing refuse material in the channel of the Lackawanna river, and for a mandatory order to compel the removal of material already deposited. From the decree enjoining further deposits, but refusing the mandatory order, plaintiff appeals. Affirmed.

The following is the opinion of the court below, (Gunster, J.:)

"The principal allegations contained in plaintiff's bill of complaint are that in 1881 the defendant, the Scranton Steel Company, erected large steel works within the limits of the city of Scranton, on the east bank of the Lackawanna river, a short distance below its junction with Stafford Meadow brook; that since that time the defendant has deposited cinders, ashes, and other refuse matter from said steel works within the channel of said river. and is continuing to deposit such matters in consequence of which the channel has been partially filled, and greatly narrowed, causing the water, even in the case of an ordinary rise in the river, to back up and overflow its banks, and flood the streets of the city, and greatly damage and injure both public and private property, and endanger the safety of the people residing near the said river, for a considerable distance above said works; that on several occasions of late, before the filing of the bill, even with an ordinary rise in the flow of water in the river, the material placed in the channel by the defendant has so obstructed the water as to cause

it to back up, and overflow the public streets and the private property of the citizens, and cause great inconvenience to public and private interests; that, if such encroachment of the channel of the river is allowed to proceed, the said channel will not be sufficient to carry off the water naturally flowing therein, and consequently thereof great and irreparable injury will be done to the public and private property of said city; and that the Lackawanna river is a public highway extending through the center of the city, with welldefined banks, and a channel which, previous to the obstruction by the defendant, was amply sufficient to conduct the wa. ter naturally flowing in such channel, without occasioning damage to the public streets of the city, and to the private property of its inhabitants, and endangering their safety. The prayer is for an injunction restraining the defendant from continuing to obstruct the channel of said river by depositing such refuse matter therein, and for an order compelling them to remove the matter already deposited in said channel, so as to permit the water to flow to the full width of the natural banks existing at the time the company commenced filling said channel.

"In their answer, the defendants, admitting that the legislature had declared the Lackawanna river a public highway for certain purposes, deny the jurisdiction of the city over it. They admit that they have erected large steel works at the place mentioned, and that they have straightened the channel of the river in various places, but deny specifically the other allegations of the bill, and particularly that the material deposited by them has filled or narrowed the channel of the river, or caused the water to back up or overflow the banks of the river, or to flood the streets of the city, or to damage public or private property, or to endanger the safety of the people residing there; and they allege that, when their steel mill was erected, there were two channels to carry off the water in front of their property; that the west channel was afterwards entirely closed by embankments and dikes built for that purpose by parties not connected with them, and that by reason thereof one outlet for the water of the river has been cut off; and that abutments and piers have also been built for a bridge across said river by other parties, and without their authority or consent; and that the entire backing of the water has been caused by such abutments, and the covering up of the western channel of the river.

"I recite the pleadings at such length for the purpose of stating the questions in dispute. I do not think it necessary to enter into an elaborate discussion of the law; for it must be obvious that if what the defendants were or are doing caused, or threatened to cause, an obstruction to the public streets or public street within the city, they ought to be restrained, and that, if what they have already done causes an obstruction to any public street, the nuisance must be abolished. The master has found that the defendant has filled in the channel of the river a distance of about one thousaud feet in length, and

to the width of from forty to fifty feet; that the extent of this filling is shown on a map attached to affidavit of Mr. Blewitt, -one of the witnesses; that the filling by the defendant in the chancel of the river has impeded the natural flow of the water, and that at times of ordinary high water it has caused the water to overflow its banks, and discharge the waters upon the public streets of the city, and rendered them impassable; that the acts of other parties, not parties to this proceeding, in also encroaching upon the river, have increased the mischief, and caused more frequent overflows; and he recommends, not only a perpetuation of the preliminary injunction heretofore granted, but also a mandatory injunction requiring the defendants to remove from the channel of the river the slag and refuse deposited therein by them.

"The exceptions to the master's report are argumentative, and not very specific. It is sufficiently clear, however, that they are aimed at the right of the city to maintain the bill of complaint, and at the sufficiency of the evidence to sustain the master's findings of fact, and his recommendations. Some confusion is caused by the charge in the bill that the encroachments on the river by the defendant had caused injury and damage to private property. There is considerable evidence to sustain this charge, and it only tends to add to the confusion. If there were no other charge, the city would have no standing; for it is only when the rights of the public, in which the city as a municipality has an interest, are affected, that the city has a right to complain. But, while the bill charges injury to private property, it also fairly charges that the material deposited in the river by the defendant has caused the water to back up and overflow public streets over which the city has control, and for the inconvenience of which it is responsible. Counsel for defendant does not deny that in such a case the city would have a standing. His contention is that the proof that the streets which were flooded were public streets is entirely insufficient and inadequate. This question does not appear to` bave been squarely raised by the pleadings. As I understand the answer of the defendants, they do not deny that the streets which are alleged to have been flooded were public streets, but that the material which they had deposited in the river had caused, or threatened to cause, the flooding. But, aside from this, we think the evidence sufficient to warrant the finding of the master in this respect. Mr. Gilbert, in his testimony, says: These overflows have interrupted travel on public streets. Last time, the water was about six inches in front of my fences on Washington street. At another time, four and a half feet of water on premises, and Washington avenue flooded up to Elm street. It also overflowed lower end of Elm street, and part of Water street. These streets are public, traveled streets.' City Engineer Blewitt, in speaking of the locality flooded, says: The streets are opened to travel. Washington avenue is one of the principal thoroughfares of the city.' Other witnesses

testified that travel was interrupted by the flooding; that public travel on the streets was stopped. Washington avenue is flooded on the Blewitt map, and is also noted on the map offered in evidence on part of the defendant. The master, who was also the examiner, and had the wit. nesses before him, understood them, when they spoke of a street or avenue, to mean a public street or avenue, and we so understand them. The objection that there is no evidence of a formal acceptance of these streets by the city is somewhat technical. We think, in a case of this kind, when the streets are opened, and traveled by the public, and the city claims control over them, and the defendant does not allege or attempt to show any right to obstruct them, such formal proof is not necessary. We may add, what is not in evidence, but within our own knowledge, that Washington avenue is the western boundary of our courthouse square, though happily not at the point where it was flooded.

"So far as the river itself is concerned, the city has shown no right to control it. While the bill alleges that it is a public highway, the answer sets forth that it was declared a public highway by the legislature for certain purposes. It seems that by the act of 26th March, 1813, (6 Smith, Laws, p. 65,) it was declared to be a public highway from its mouth to Ragged island, at the mouth of Rush creek, 'for the passing of rafts, boats, or other vessels,' while the city is authorized by the act of 1874, (P. L. p. 230, § 20, cl. 20,) and by the act of 1889, (P. L. p. 277, art. 5, §3, cl. 33,) to establish, alter, and change the channels of water courses, and to wall them, and cover them over; to establish, make, and regulate public wells, cisterns, aqueducts, and reservoirs of water, and to provide for filling the same,' there is no evidence in the case that the city has ever exercised this authority, or acquired any rights thereunder. The master correctly concluded that, if relief is to be given to the city, it should be given, not because of any control she might, but has not, exercise over the stream, but for the invasion of her right to use the public streets of the city for the purposes of public travel.

"While the evidence shows repeated overflows and injury to private property, it discloses only two floodings of the streets, which can be properly attributed to obstructions placed in the river. This appears from the testimony of Mr. Gilbert. They occurred March 22, 1888, and December 17, 1888. Plaintiff's bill was filed March 2, 1889. The master made his report November 30, 1891, and exceptions to this report were argued before last February. Before the arguments of the exceptions, it was admitted that the streets in this locality mentioned had not been flooded since December 17, 1888. This fact threw a seri ous doubt upon the correctness of the master's findings of fact, and upon the wisdom of his recommendation, and we have examined the evidence to ascertain whether they could be sustained. It is an undisputed fact that the 'Flats,' as the locality is popularly called, upon which

the defendants have erected their steel works, consist of low lands, which are liable to inundation in times of extraordinary high water. In the construction and operation of their works the defendants filled up much of their own land. Under an arrangement with all but two of the owners of low lands abutting on the east side of the river above them, they were raising the east bank of the river, by depositing slag and cinders thereon, when they were restrained by the preliminary injunction. There is evidence that in these filling operations the defendants encroached upon the bed of the stream, but the evidence of the extent of their en. croachments is very unsatisfactory. Mr. Scranton, the principal witness for the defendants, testified that they did not deposit any material in the channel of the river where it was then; that the channel had changed; and that they had only put slag and other material along the east bank, and filled up some of the bays and gulfs, so as to make a straight corner for the wire. On behalf of the plaintiff, Mr. Schantz testined that defendants have filled the channel from 40 to 50 feet; Mr. Schwenk testified to from 45 to 55 feet; Mr. Nothacker, to from 80 to 120 feet; and Mr. Gilbert testified that the defendants have filled the channel of the river, from the east bank, from 60 to 120 feet. The master finds that the east bank of the river has been filled by the defendants a distance of about one thousand feet in length, and to the width of from forty to fifty feet; that the extent of this filling is shown on the map attached to the affidavit of Mr. Blewitt, which map he finds to be correct and adopts as showing the encroachments by the defendants on the former bed of the river. In all the testimony there is no reference to any landmark. None is noted on the Blewitt map. The map itself does not purport to have been drawn on any particular scale, and there is no evidence to show upon what scale it is drawn.

"But, whatever may be the extent of these encroachments, there are other facts and circumstances to be considered, in or der to reach a just conclusion. It appears from the undisputed testimony in the case that formerly the Lackawanna river, at a point a little above the premises of the defendant, divided into two channels. One of these flowed about where the river is now, and the other flowed a little west, and rejoined the first some distance below. Immediately above this division, on the west side of the river, was a culm dump of one of the collieries of the Delaware, Lackawanna & Western Railroad Company. Some time after the defendants had crected their plant,-but when, the evidence does not show,-the Wilkes Barre & Scranton Railroad Company constructed their railroad on the west side of the river. When the railroad was completed the west channel was closed at both ends. Mr. Marple testifies that when he made his survey it looked as if a timber dike had been put there to stop the water from running through. It does not appear from the evidence either by what authority or by whom the western channel of the river