Adams v. Ford , 3 Pa. Super. 239 ( 1897 )

Opinion by

Willard, J.,

This case rests upon the proper construction of the acts of assembly relative to the powers and duties of the board of health of the city of Philadelphia. The act of January 29,1818, P. L. 38, provides, inter alia, as follows : “ It shall be the duty of the said board of health to cause all offensive or putrid substances, and all nuisances which may have á tendency in their opinion t'o endanger the health of the citizens, to be removed from the streets, lanes, alleys, highways, wharves, docks or any other part or parts of the city of Philadelphia, and to cause such of the privies within the limits aforesaid to be emptied or corrected with lime or otherwise at the expense of the individuals who are the owners of the houses to which .the said privies are appurtenant, as the board shall from time to time deem necessary for the health of the inhabitants thereof.”

The act of April 5, 1849, P. L. 346, provides, inter alia, as follows: “ The board of health shall have full power and authority’to remove the cause of all nuisances, that exist now, or may be hereafter created, hi the same manner and by the same authority as the existing laws now authorize them to remove all nuisances.”

This bill was filed by the appellant to prevent the filling of a privy vault or well, partly on his premises, with clean earth in order to prevent a nuisance in a thickly populated part of the city of Philadelphia. The facts found by the trial judge, which are not in dispute, show that during the month of June, 1894, said well, in pursuance of a complaint, was ordered to be cleaned by direction of the board of health; that the well was cleaned, and subsequently the board, after an inspection, were of Opinion that the cleaning of the well did not abate the nuisance. The board of health thereupon ordered the well to be abandoned and filled with clean earth.

A privy well may or may not be a nuisance per se according to circumstances. According to the facts of this case, ample authority is vested by the legislature! in, the board of health to determine the character and location of the \Vell in question and to order and direct the necessary things to be done in order to prevent the nuisance. By the acts of assembly that discretion is vested in the board of health, and it is not for this court to disturb or question the exercise o.f that discretion. In this case the board declared that the cleaning of the well did not abate the nuisance, and so it is found as matter of fact. This being so, the board had the right to take the next step and order the well filled with clean earth.-

In Philadelphia v. Provident Trust Company, 132 Pa. 224, the board went one step- further, and in the exercise of its discretion directed the erection of water closets and connections after having directed the cleaning of the well. This, it was held, was in excess of delegated authority. In that case it was an admitted fact that the cleaning abated the nuisance. In this case it is a matter of fact that the cleaning was not sufficient without filling, which, in its discretion, the board of health properly ordered to be done.

That “ no wanton or unnecessary injury to the property or rights of individuals must be committed in the abatement of nuisances,” as held in Babcock v. Buffalo, 56 N. Y. 268, is undoubted law, but the facts in this case show no wanton or unnecessary injury.

In Kennedy v. Board of Health, 2 Pa. 366, the court held that the board of health “have final jurisdiction in determining the fact of nuisances which they order to be removed.” In that case the defendant maintained upon a vacant lot in Philadelphia a stagnant pool of water which the board of health deemed a nuisance and ordered the defendant to fill it with-earth that the nuisance might be abated.- Failing to do so, the board of health caused it to be filled with two hundred and fifty-four (254) loads of earth, and filed a lien against the lot for the recovery of the cost of filling, which on appeal was sustained. Had Kennedy been directed to clean the stagnant pool, and this means having proved ineffectual on investigation by the board of health, and the filling subsequently ordered, can it be successfully asserted that the act of cleaning could be interposed as a defense to the scire facias on the lien for the filling of the pool? We think not; this case is ruled by Kennedy v. Board of Health, supra.

The judgment of the court below is affirmed.