Opinion
January 26, 1939.
January 27, 1939.
Nuisances — Nuisance per se — Incinerator plant — Operation — Evidence — Findings of court below — Appellate review.
A decree, dismissing a bill in equity seeking to restrain the defendant city from awarding a contract for the construction of a garbage incinerator, was affirmed on appeal, where it appeared that there was evidence to sustain the findings of the court below that the establishment of an incinerator plant with the most approved appliances, and its normal operation, did not constitute a nuisance per se.
Argued January 26, 1939.
Before KEPHART, C. J., SCHAFFER, MAXEY, DREW, LINN, STERN and BARNES, JJ.
Appeal, No. 53, March T., 1939, from decree of C. P. Allegheny Co., Jan. T., 1938, No. 1547, in case of F. J. Kress Box Company et al. v. City of Pittsburgh et al. Decree affirmed.
Bill in equity. Before THOMPSON, J.
Decree entered dismissing bill. Plaintiffs appealed.
Errors assigned, among others, were dismissal of exceptions to adjudication.
Robbin B. Wolf, with him W. Davis Graham, Max J. Spann and B. Robert Averbach, for appellants.
Anne X. Alpern, First Assistant City Solicitor, with her Wm. Alvah Stewart, City Solicitor, for appellee.
The court below having found that the establishment of an incinerator plant, with the most approved appliances, and its normal operation, including the convergence of wagons bearing garbage, is not a nuisance per se, and there being evidence upon which to base that finding, following our usual rule in cases of alleged nuisances, the decree must be affirmed. If the operation of the plant does become a nuisance in fact, appellants have their remedy, either by a new proceeding or under the present bill, of which the court below will retain jurisdiction.
The other questions raised have been passed upon in support of the decree of the court below in Sheets et al. v. Armstrong et al., 307 Pa. 385, and other decisions.
The erection and operation of the incinerator plant by the City was in its proprietary capacity. See Gemmill v. Calder et al., 332 Pa. 281. This latter case could not have been decided as it was if such had not been the holding. This, however, does not affect the conclusion reached in the present case.
Decree affirmed at appellants' cost.