Crosland v. Borough of Pottsville

Citations

• 126 Pa. 511
• 18 A. 15
• 1889 Pa. LEXIS 908

Syllabus

<p>(a) The plaintiff’, a lot-owner in a borough, gave to the owner of a lot across the street a license to carry off surface water by a covered drainpipe, passing under the street and through the plaintiff’s lot to a stream of water.</p> <p>(5) The licensee, misusing the privilege, turned into the drain the foul matter from his cess-pool and privy vaults, to the injury of the dwelling-houses of the plaintiff, who thereupon disconnected the drain and stopped it a1 his curb line.</p> <p>(c) The offensive matter then flowed into the street, when the borough authorities at the instance of the licensee re-connected the drain-pipe, turned the flow again into plaintiff’s premises, and, the plaintiff resisting the workmen, caused his arrest and imprisonment in the lock-up.</p> <p>1. When a person who is entitled to a limited right exercises it in excess, so as to produce a nuisance, it may be abated to the extent of the excess; but if the nuisance cannot be abated without obstructing the right altogether, the exercise of the right may be stopped entirely, until means have been taken to reduce it within its proper limits.</p> <p>2. Creating no breach of the peace, the plaintiff had a right after duo notice, to stop the flow through his premises; the borough authorities had no right to re-construet the drain and turn its contents again upon the plaintiff's property; and, in ail action by the plaintiff against the borough to recover damages for the injury and for his arrest, it was error to instruct the jury to find for the defendant.</p>