Alton A. McDonald, Myers & McDonald, Ebensburg, for appellant.
C. E. Davis, Ebensburg, for appellee.
Before Rhodes, P. J., and Hirt, Reno, Dithrich, Ross, Arnold and Gunther, JJ.
[ 170 Pa. Super. Page 214]
Plaintiff, Henry Pinkshaw, is the owner of a tract of land embracing about 180 acres in defendant Township of Cambria. For a considerable distance this tract abuts on a Township road, constituting its northerly and northwesterly boundaries, and is situated in a valley into which surface waters from lands north of the Township road and the road itself naturally drain. A small stream, after passing through a culvert under the Township road, enters plaintiff's land at its northeasterly corner and crosses it in a southwesterly direction. However, this culvert is blocked most of the time and during heavy rains surface water overflows onto the road and thence onto plaintiff's property.
Beginning in 1938, plaintiff constructed six dams on the land in question for purposes of 'raising, propagating, and stocking fish,' incidents of his commercial fishing venture. Five dams were constructed west of the stream, creating small ponds, fed by springs, which were used as 'rearing pools.' The sixth and largest one was constructed on the southerly portion of plaintiff's land. The pond there created, fed principally by the stream and surface drainage, covered five or six acres and was five to six feet deep. When fish in the 'rearing pools' reached a certain size they were transferred to the pond at the large dam where the public, upon payment of a fee to plaintiff, were permitted to fish.
In the fall of 1943, in improving the Township road, defendant covered it with coal mine waste to a depth of four to eight inches. Following heavy rains in the spring of 1944 large numbers of plaintiff's fish died,
[ 170 Pa. Super. Page 215]
though prior to that time they had thrived in the environment provided for them. On May 24, 1945, plaintiff filed an action in trespass against defendant seeking to recover damages for injury to his real estate, alleging that 'the dams and/or ponds constructed by the Plaintiff * * * became useless for the purpose of raising, propagating, and stocking fish caused by water passing through the * * * coal mine waste * * *, whereby the waters in the dams and/or ponds became toxic to fish, the * * * substance negligently * * * placed on the * * * road * * * causing sulphur compounds and acids in the water of said dams and/or ponds.'
The case was first tried in 1947 and resulted in a verdict for plaintiff for $6800, but a new trial was granted on the ground that the verdict was excessive. A second trial took place in 1949 and resulted in a verdict for plaintiff for $1500. The court below denied defendant's motions for new trial and judgment n. o. v. and ordered judgment entered on the verdict. The sole question raised in this appeal is whether plaintiff has proved, with the certainty required by law, a causal connection between defendant's negligent use of the coal mine waste on the Township road and the injury to plaintiff's land.
It is clearly established that the mine waste generated a toxic substance which was deleterious to aquatic life. There was expert testimony that aquatic life will not live in water having a pH less than 4.6. The symbol pH, as used here, refers to acid content. Samples taken from the roadbed in 1944 showed a pH of 2.4 and a pH of 2.6. In 1949 similar samples indicated a pH of 2.9, while ...