Mowday v. Moore

Citations

• 133 Pa. 598
• 19 A. 626
• 1890 Pa. LEXIS 939

Syllabus

<p>1. Where, on the hearing of a proceeding in equity before a master, testimony is offered in rebuttal by either party which is not properly in answer to new matter introduced by the opposite party, but is merely cumulative upon the case in chief of the one offering it, the admission of such testimony by the master is erroneous.</p> <p>2. Though a nuisance, threatening private damage that is imminent and irreparable or is not capable of adequate compensation in money, may be enjoined in equity without first establishing the right at law, yet a final injunction for that purpose will be granted only when the right is clear and the facts upon which it rests uncontested •. Rhea v. Forsyth, 37 Pa. 503; New Castle v. Raney, 130 Pa. 516.</p> <p>3. The fact that, in an action at law brought by the plaintiff to recover damages for a nuisance alleged the jury on trial thereof failed to agree, is conclusive evidence that the ease is too doubtful for original relief in equity; such fact being shown before the master, in a proceeding to enjoin the continuance of the same nuisance, it should at once terminate the proceeding.</p> <p>(a) The plaintiff erected upon his town lot a building with a cellar under it, knowing that the soil was spongy, and that upon the adjoining lot of defendant was a race-way the water from which passed to plaintiff’s cellar when he was building, but, notwithstanding the fact, he proceeded without using precautions which would have afforded protection:</p> <p>4. Before the erection of the plaintiff’s building,, the defendant, having erected buildings upon his lot without cellars and with cross-walls from the wall of the race-way to the plaintiff’s line, constructed in a regular and proper manner, tlie plaintiff could not sustain a bill for a decree requiring the defendant so to re-construct his buildings that the water would not pass to the plaintiff's premises.</p>