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WASCHAK v. MOFFAT (11/08/54)

November 8, 1954


Appeal, No. 277, Jan. T., 1953, from judgment of Superior Court, Feb. T., 1953, No. 11, affirming judgment of Court of Common Pleas of Lackawanna County, May T., 1951, No. 165, in case of Joseph J. Waschak and Agnes Waschak v. Robert Y. Moffat and W. K. Moffat, trading as Moffat Coal Company. Judgment reversed; reargument refused December 13, 1954. Same case in Superior Court: 173 Pa. Super.Ct. 209. Trespass. Before ROBINSON, J. Verdict for plaintiffs and against defendants, and judgment thereon. Defendants appealed to the Superior Court, which affirmed he judgment of the court below. Appeal by defendants to Supreme Court allowed.


Bernard G. Segal, with him Edward W. Mullinix, Matthew D. Mackie, J. Hayden Oliver, Wm. A. Schnader, Welles & Mackie and Schnader, Harrison, Segal & Lewis, for appellants.

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

Before Stern, C.j., Stearne, Jones, Bell, Chidsey and Musmanno, JJ.

Author: Stearne

[ 379 Pa. Page 442]


[ 379 Pa. Page 443]

The appeal is from a judgment of the Superior Court refusing to enter judgment non obstante veredicto for defendants in an action in trespass and affirming the judgment of the Court of Common Pleas of Lackawanna County in favor of plaintiffs.

Gas or fumes from culm banks, the refuse of a coal breaker, damaged the paint on plaintiffs' dwelling. In this action for damages the applicable legal principles are technical and controversial. Considerable confusion appears in the many cases. The field is that of liability without fault for escape of substances from land.

Plaintiffs are owners of a dwelling in the Borough of Taylor which is in the center of Pennsylvania's anthracite coal lands. An action in trespass was instituted against two partners, operators of a coal breaker in that Borough. Without fault on the part of defendants, gas known as hydrogen sulfide was emitted from two of defendants' culm banks. This caused discoloration of the white paint (with lead base) which had been used in painting plaintiffs' dwelling. The painted surface became dark or black. The sole proven damage was the cost of restoring the surface with a white paint, having a titanium and zinc base, which will not discolor. There was no other injury either to the building or occupants. The verdict was for $1,250.

While the verdict is in a relatively modest amount, the principles of law involved, and their application, are extremely important and far reaching. Twenty-five other cases are at issue awaiting the decision in this case. The impact of this decision will affect the entire coal interests - anthracite and bituminous - as well as other industries. Application of appropriate legal principles is of vital concern to coal miners and to other labor.

[ 379 Pa. Page 444]

The pivotal facts are undisputed. To mine anthracite coal, either by deep or strip mining, requires processing in a coal breaker before marketing. Usable coal, broken to various sizes, must first be separated from its by-products of minerals, rock, etc. The by-products are deposited in piles known as culm banks, portions of which may be reclaimed, while other parts are presently regarded as waste. The mining and processing in the present case are conceded to have been conducted by defendants without fault. Fires frequently appear in the culm banks long after the accumulation. Defendants neither committed any negligent act nor omitted any known method to prevent combustion, fires or the emission of gases. In addition to hydrogen sulfide two other gases, carbon monoxide and sulfur dioxide were shown to have also been emitted, but it is not contended that either of these two gases affected the paint in question. Hydrogen sulfide was conceded to have been the gas which caused the damage. The emission of this gas is not ordinarily found in the operation of coal mining and processing. Defendants did not know and had no reason to anticipate the emission of this gas and the results which might follow. Of the five culm banks only two of them, the Washington Street bank and the settling basin were shown to have emitted hydrogen sulfide.

In the court below the case was tried on the theory of absolute liability for the maintenance of a nuisance. The jury was instructed that it should determine, as a matter of fact, whether or not what the defendants did and the conditions resulting therefrom constituted a "reasonable and natural use" of defendants' land. The Superior Court declined to adopt the rule of absolute liability. That court followed Restatement, Torts, Chapter 40 which relates to "liability without fault". The verdict was affirmed, however, because, as stated in

[ 379 Pa. Page 445]

    the opinion, "[a] vast quantity of coal was brought ... from lands outside the borough..." and "... the fact that hydrogen sulphide gas had not been generated in any of the existing ... culm banks, made up wholly of wastes from coal mined in the borough, it was a fair inference for the jury that a different chemical content in the foreign coal which defendants hauled to the borough and processed there, accounted for the presence of the gas in the atmosphere. ..." (Italics supplied)

The measure of liability for the escape of substances from land has been a controversial subject in the law. Much learning has been expended in this field. Unquestionably there is confusion in the host of cases on the subject. Judge ROBINSON tried the case in the court below with care. His charge and opinion reflect scholarly thought and effort. Judge HIRT, with his accustomed learning and acumen, reviewed the facts and the law. Both opinions merit great respect. Legal articles, extensively documented, have been published on the subject. An informative treatise titled "The Absolute Nuisance Theory in Pennsylvania" is found in 95 U. of Pa.L.Rev. 781. Hon. Charles E. KENWORTHEY, formerly a Judge in the Superior Court, has written an article titled "The Private Nuisance Concept in Pennsylvania: A Comparison With The Restatement" reported in 54 Dick.L.Rev. 109. The Restatement of the Law, Chapter 40 of Torts, sections 822 to 840, with scope and introductory note, on the "Invasions of Interests in the Private Use of Land (Private Nuisance)" with Pennsylvania Annotations in the 1953 Pocket Supplement, restates the law.

From the multitude of cases there appear to have been promulgated three rules of law where there has been an invasion of interests in the private use of land. They arise most frequently where, without negligence

[ 379 Pa. Page 446]

    or fault, material escapes to the land of another causing damage. The rules may be thus stated:

(1) English rule of Rylands v. Fletcher, L.R. 3 H.L. 330 (a leading case which is frequently cited)

(2) Absolute Nuisance Doctrine

(3) Restatement Rules.

(1) Rylands v. Fletcher

The English rule, supra, is concisely expressed by Lord CRANWORTH as follows (p. 340): "... If a person brings, or accumulates, on his land anything which, if it should escape, may cause damage to his neighbour, he does so at his peril. If it does escape, and cause damage, he is responsible, however careful he may have been, and whatever precautions he may have taken to prevent the damage." The strict doctrine of Rylands v. Fletcher, supra, has not been followed by this Court: The Pennsylvania Coal Company v. Sanderson, 113 Pa. 126, 6 A. 453; Householder v. Quemahoning Coal Co., 272 Pa. 78, 116 A. 40; Venzel v. Valley Camp Coal Co., 304 Pa. 583, 156 A. 240.

(2) Absolute Nuisance Doctrine

Instead of the English doctrine, ordinarily this Court has heretofore applied what has been termed the Absolute Nuisance Doctrine. As pointed out by Judge KENWORTHEY, much of the confusion in this field is due largely to the diversification in defining the word "nuisance". There is a nuisance per se and a nuisance in fact. Thus a gas station in a residential neighborhood may be a nuisance per se, but a retail grocery supermarket while not a nuisance per se may become a nuisance in fact if improperly conducted: Essick v. Shillam, 347 Pa. 373, 32 A.2d 416. There is also confusion respecting failure to distinguish between trespass and nuisance. Many of the cases have used the phrase "it is not a question of negligence, but of nuisance": Pottstown Gas Company v. Murphy, 39

[ 379 Pa. Page 447]

Pa. 257; James Gavigan v. The Atlantic Refining Company, 186 Pa. 604, 40 A. 834; Stokes v. Pennsylvania Railroad Company, 214 Pa. 415, 63 A. 1028. In Kramer v. Pittsburgh Coal Company, 341 Pa. 379, 19 A.2d 362, when defining nuisance, Chief Justice SCHAFFER said (p. 381): "'... In legal phraseology, the term "nuisance" is applied to that class of wrongs that arise from the unreasonable, unwarrantable, or unlawful use by a person of his own property, real or personal, or from his own improper, indecent, or unlawful personal conduct, working an obstruction or injury to a right of another, or of the public, and producing such material annoyance, inconvenience, discomfort or hurt that the law will presume a consequent damage:' 46 C.J. 645-646. 'Nuisance is distinguishable from negligence:' Ibid, 650. 'The distinction between trespass and nuisance consists in the former being a direct infringement of one's right of property, while, in the latter, the infringement is the result of an act which is not wrongful in itself, but only in the consequences which may flow from it:' Ibid, 651. As we stated in Summit Hotel Co. v. National Broadcasting Co., 336 Pa. 182, 189, 8 A.2d 302: 'In cases of trespass for nuisance, the person responsible may be unable, no matter how careful, to avoid injury to the lands of another, but, again, he knows that injury may result from the nature of his activities regardless of care. Under such circumstances he also assumes the risk The responsibility for injury lies in creating or maintaining the harmful condition.'"

An invasion of an interest may be intentional or unintentional. If an owner of land erects a factory upon it, which he operates, his act is, of course, intentional when he ignites fires under the boilers which emit smoke or fumes and operate noisy machinery. Such intentional operations may become a nuisance

[ 379 Pa. Page 448]

    and cause damage to an adjoining property, depending upon the method of operation, location of the premises and surrounding circumstances. Under varying conditions the harm caused by the emission of offensive odors, noises, fumes, violations, etc., must be weighed against the utility of the operation. And even where the invasion of property rights is unintentional, and without negligence, if the activity is ultrahazardous there will be imposed an absolute liability for damages. Thus in a blasting operation, recovery was had where the damage was due solely to vibration and concussion: Federoff v. Harrison Construction Co., 362 Pa. 181, 66 A.2d 817.

To attempt to cite the host of cases and analyze them would be a Herculean task and prove uneffective. Many of the cases are cited in the Pennsylvania Annotations to the Restatement, Torts, supra.

(3) Restatement Rules

The Rule of the Restatement, which unquestionably is accurate and most comprehensive, is as follows:

"Section 822. GENERAL RULE.

The actor is liable in an action for damages for a non-trespassory invasion of another's interest in the private use and enjoyment of land if,

(a) the other has property rights and privileges in respect to the use or ...

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