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NORTHEASTERN PENNSYLVANIA NATL. BANK & TRUST CO. V

March 31, 1971

NORTHEASTERN PENNSYLVANIA NATIONAL BANK AND TRUST COMPANY, Trustee under Will of J. Curtis Platt, Deceased, et al., Plaintiffs,
v.
SANDVICK STEEL, INC., a Delaware Corporation, Defendant


Muir, District Judge.


The opinion of the court was delivered by: MUIR

This action is before the Court on motion by defendant to dismiss the complaint. The motion will be denied.

 Plaintiffs are residents of Lackawanna County, Pennsylvania. Defendant, a Delaware corporation with its principal place of business in Fairlawn, New Jersey, is presently constructing a steel plant in Scott Township, Lackawanna County.

 The plaintiffs with the exception of Welch and Reynolds live to the west of defendant's land in Abington Township.

 Plaintiffs further allege that the normal and natural flow of water or drainage from the defendant's tract of land is easterly into a brook known as Kennedy Creek. They claim that at no time has the natural flow of water or drainage from the defendant's tract of land been westerly into the swamp or Ackerly Creek.

 In the operation of its steel plant, plaintiffs contend that the defendant intends to use large quantities of water which will be discharged in a westerly direction into the swamp and Ackerly Creek and hence, on or through the plaintiffs' lands. Plaintiffs state that the water so discharged will contain chemicals and other obnoxious or dangerous substances. Additionally the complaint alleges that defendant intends to discharge in a westerly direction the effluent from a private sewage plant to be erected on the land.

 Since they contend that the defendant's tract of land is not part of the natural or normal watershed of the swamp and Ackerly Creek, and that defendant is not a riparian owner of the swamp or creek, plaintiffs seek an injunction restraining the defendant from engaging in this activity. The jurisdiction of this court is invoked under the provisions of 28 U.S.C. § 1332(a).

 In the motion to dismiss, defendant argues that: (1) the complaint fails to state a claim upon which relief can be granted; (2) the court lacks jurisdiction over the subject matter since the requisite jurisdictional amount has not been satisfied; and (3) assuming the court has jurisdiction, the suit should be dismissed because (a) the doctrine of abstention is applicable, (b) the suit is premature, and (c) plaintiffs have an adequate remedy under the Pennsylvania Pure Streams Act, 35 P.S. § 691.1 et seq.

 Attached to the motion to dismiss is the affidavit of the manager of defendant's operation in Lackawanna County. Affiant states that an application for leave to discharge the water generated by the steel operation into Ackerly Creek is presently pending before the Sanitary Water Board of the Pennsylvania Department of Health. The issues will be discussed seriatim.

 Defendant contends that the complaint should be dismissed for failure to state a claim since the allegations are vague and conclusory and since the imminence of harm required to sustain an injunction is not pleaded.

 Plaintiffs, on the other hand, contend that the facts pleaded are sufficient to state a cause of action on theories sounding both in tort and property law concepts.

 It is settled that a complaint should not be dismissed for failure to state a claim unless it appears to a certainty that the plaintiff is entitled to no relief under any set of facts which could be proved in support of the claim. 2A Moore's Federal Practice § 12.08. In the instant case, plaintiffs have, in my view, pleaded sufficient facts to overcome such an objection. In this regard, the critical facts are that (a) defendant intends to divert by artificial means the natural flow of water over its lands, and (b) that as a result, an unreasonable amount of water will flow over the tracts of land owned by the plaintiffs. In Lucas et ux. v. Ford et al., 363 Pa. 153, 156, 69 A. 2d 114, 116, the court said: "it is clear that only where the water is diverted from its natural channel or where it is unreasonably or unnecessarily changed in quantity or quality has the lower owner received a legal injury." It is obvious, therefore, that there is neither an absence of law to support the claim made, nor facts sufficient to support the claim.


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