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WASCHAK ET AL. v. MOFFAT ET AL. (04/15/53)

April 15, 1953



James W. Scanlon, Matthew D. Mackie and Welles & Mackie, Scranton, Edward W. Mullinix, Bernard G. Segal, Wm. A. Schnader and Schnader, Harrison, Segal & Lewis, Philadelphia, for appellants.

Raymond T. Law, Will Leach and John R. Lenahan, Scranton, for appellees.

Before Rhodes, P. J., and Hirt, Reno, Dithrich, Ross and Arnold, JJ.

Author: Hirt

[ 173 Pa. Super. Page 210]

HIRT, Judge.

Plaintiffs, in June 1948, bought a house and lot on Main Street in the Borough of Taylor, Lackawanna County, which they occupied as their home. In October

[ 173 Pa. Super. Page 2111948]

in repainting the house they used paint with a white lead base. Within six months the painted surface of the building became discolored and finally changed from its initial white to a permanent black. Based upon tests made by a competent chemist there was testimony in the court below that in the neighborhood of plaintiffs' house there was a concentration in the atmosphere of between one and two parts per million of hydrogen sulphide. It is conceded that the gas in that degree of concentration came from defendants' culm dumps and that the paint damage on plaintiffs' property resulted from the chemical reaction of hydrogen sulphide on the white lead in the paint which changed it to black lead sulphide. This suit was brought by plaintiffs to recover damages both to their house and for personal discomfort caused by hydrogen sulphide from defendants' culm banks. The case was well tried in the court below and resulted in a verdict of $1,250 for the plaintiffs. Defendants' sole complaint in this appeal is that the court erred in submitting the question of liability for nuisance to the jury. It is defendants' contention that they are not responsible as a matter of law under the facts in this case, and that the judgment entered on the verdict therefore must be reversed and here entered in their favor.

In the light of the verdict, based upon testimony in which there is little dispute, these material facts appear: For more than 50 years coal mining has been the most important industry in the Borough of Taylor. Glen Alden Coal Company owned large tracts of land in the borough extending into the township on which it had conducted extensive mining operations during that period. It processed the coal at a large breaker in the borough, located within a few hundred feet of the property now owned by the plaintiffs. In accordance with the general practice, and with the consent

[ 173 Pa. Super. Page 212]

    of the borough, Glen Alden deposited the by-products of mining, consisting of waste material and coal which could be made saleable by reprocessing, in a culm bank as close to the breaker as possible without interfering with its operation. Glen Alden ceased operating the mines in 1932 and there was then a large refuse dump near the breaker. In 1937 the defendants undertook to reopen the mines and among the lands then leased to them by Glen Alden, were two large tracts, one fronting 2,500 feet on Washington Street in the borough, and the other near the breaker extending along Main Street for about one-half mile. Defendants from 1937 to 1944 by means of a conveyor line from the breaker, built up an extensive bank of culm or reclaimable sulphurous coal adjacent to the existing Glen Alden bank, referred to as the Main Street dump. This bank was abandoned in 1944 when it started to burn. In the years that followed defendants, from necessity, turned to other locations for their culm banks. In 1944 they started to deposit culm on Washington Street, within the borough, which ultimately developed into a bank 10 to 60 feet high extending 800 feet along Washington Street and 750 feet along an alley in the rear of Union Street. This bank began to burn in 1948 and further dumping was then discontinued. Defendants then began the construction of a large settling basin near their Main Street dump. The walls of the so-called 'silt dam' were 25 feet high and were constructed principally of breaker refuse. The function of the structure was to separate silt from the water used in processing coal at the breaker, to comply with the Act of June 22, 1937, P.L.1987, 35 P.S. § 691.1 et seq., before discharging it into natural streams. Still another culm bank was started in 1949 on Fourth Street in the borough and defendants continued to deposit wastes from the mine at that location until May, 1951, when this dump

[ 173 Pa. Super. Page 213]

    also began to burn. The Fourth Street bank was 500 feet in length, 500 feet wide and 40 feet high. Extensive ramps to the dump were also made of breaker refuse material. Defendants are now using a new location as a dumping ...

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