
    Haugh’s Appeal.
    1. The construction and use of a cess-pool or privy, the percolations from which contaminate the water in the well of an adjoining land-owner, used for household purposes, is a nuisance per se, not justifiable on the ground of necessity.
    2. The maintaining of such nujsance is actionable at law, or it will be restrained by injunction in equity.
    3. It is immaterial that the premises are within the corporate limits, though not in a closely built part of a city and abut on a paved street wherein the mains from the city water works are laid, from which the owner of the well could have obtained a water supply, on paying the usual charge.
    4. Jacobs v. Worrell, 15 Leg. Int. 139, approved.
    March 27th 1882.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkey, Sterrett and Green, JJ.
    Appeal from the Court of Common Pleas No. 3, of Philadelphia county: Of January Term 1881, No. 115.
    This was a bill in equity filed by Matthias Dill against Marcus Haugh, praying that the defendant be enjoined from using a cess-pool or privy well, on his lot, whereby the water in a well on plaintiff’s lot was fouled. The defendant filed an answer, and the cause was referred to an Examiner and Master, (J. Howard Gendell, Esq.), who found the facts to be substantially as follows:
    The complainant and the defendant own adjoining houses and lots, situate in the outskirts of that part of the city of Philadelphia known as Manayunk. The plaintiff purchased his property in 1845, on which the well had been dug the preceding year. The water of said well was always pure and suitable for household purposes until shortly after the construction by the defendant of the cess-pool on his lot, when it became foul and unfit for use. The properties were not in a thickly built-up section, and wells and pumps were in common use in similar properties. The street on which the lots abut, was paved, water-pipes from the water-works laid, and the property taxed at full city rates.
    The Master, after reviewing the evidence as to the relative situation of the well and the privy, and the character of the soil, found as a fact “ that the water in plaintiff’s well has been and is contaminated by the defendant’s privy-well.” The Master reported, as matter of law, that the plaintiff was entitled to the relief prayed for, and recommended a decree accordingly.
    The defendant excepted to the M aster’s finding that “ the injury complained of is directly traceable to the defendant’s privy,” and to the decree as reported.
    The court, after argument, dismissed the exceptions, confirmed the master’s report, and entered a decree perpetually enjoining the defendant “ from permitting or suffering any water or filth to run or percolate into the water well upon plaintiff’s premises from the privy on defendant’s premises; that to this end the said defendant be, and he is hereby required within thirty days to thoroughly cleanse said privy-well ; and he is hereby further perpetually enjoined from using said privy-well, or permitting or suffering the same to be used until it be thoroughly cemented, or otherwise rendered water-tight.”
    The defendant thereupon took this appeal, assigning for error the said decree, and the confirmation of the Master’s report.
    
      George W. Arundel and Benjamin Harris Brewster, for the appellant.
    — The complainant was not entitled to the extraordinary remedy by injunction, for several reasons : (1) Whether the injury was caused by defendant was doubtful, the Master’s finding to the contrary notwithstanding. The finding that the contamination was traceable to defendant’s cess-pool was not, in its nature, a finding of fact, but necessarily a mere inference from the evidence. As to this the Master reported: “ The decided weight of the testimony is, that the dip of the rock from the privy well is away from and not towards the plaintiff’s well. . . . It is true that water will not run up-hill, but if the descent is obstructed it may be backed to a higher level. . . . It might flow from the well for a short distance in one direction, and then by reason of an open seam in the rock, or otherwise, entirely change its course, and flow directly under its former channels.” So it might, but then again it might not. The Master inferred, against the weight of the evidence, that it did. But this is not such a finding of “ fact” as will be accepted as final to warrant an injunction.
    (2) The damage was not irreparable. The lots, formerly in a rural district, are now in the city, and the plaintiff could by the introduction of a hydrant obtain the usual water supply from the'city mains. If he is entitled to damages, he must sue for them at law. The mere diminution of the value of property, without malice or intentional injury, is not a ground for relief in equity.
    (3) The defendant used his property for a necessary purpose, as it was his right and duty to do. The Master found that the city ordinances, relative to locating cess-pools a certain distance from the division line, had been complied with. In the absence of a sewer, there was far more necessity for- the defendant’s privy than for the complainant’s water well, and, under such circumstances, equity will not deprive a man of the right to use his property in a necessary and lawful way, because his neighbor prefers to adhere to the well-water of his fathers instead of availing himself of the modern city water supply.
    The following authorities support the above positions: Attorney-General v. Nichol, 16 Ves. 338; Wynstanley v. Lee, 2 Swanst. 352; Fishmonger’s Co. v. East India Co., 1 Dick. 164; Acton v. Blundell, 12 M. & W. 324; Greatrex v. Hayward, 20 Eng. L. & Eq. Rep. 377; Rawstron v. Taylor, 33 Id. 428; Broadbent v. Ramsbotham, 34 Id. 553; Greenleaf v. Francis, 18 Pick. 117; Roath v. Driscoll, 20 Conn. 533; Wheatley v. Baugh, 1 Cas. 528; Fletcher v. Rylands, 1 L. R. Ex. 265; Losee v. Buchanan, 6 Sickels (N. Y.) 476.
    
      Alexander Simpson, Jr. (with him J. Alexander Simpson), for the appellee.
    — A privy,- the filth from which leaks into an adjoining property, is a nuisance per se without regard to the question of negligence: Jacobs v. Worrell, 15 Leg. Int. 139; Shuter v. City, 3 Phila. 228; Wood on Nuisances, p. 556; Cooley on Torts (ed. 1879) 567; Sanderson v. Penna Coal Co., 5 Norris 401. The nuisance being a continuing one, the equitable remedy by injunction is available. Act June 16th 1836, P. L. 789; Womersley v. Church, 17 Law Times (N. S.) 190; Masson’s Appeal, 20 P. F. S. 26; Allison’s Appeal, 27 Id. 221; Brightly’s Eq. § 291 Story’s Eq. § 925.
   Mr. Justice Gordon

delivered the opinion of the court, April 10th 1882.

We can do nothing in this case but affirm the decree of the court below. Even were we otherwise inclined, we would be compelled to encounter an opposing tide of authority against which it would be difficult indeed to make head.

As the Master has found, the privy vault of the defendant, Haugh, by its offensive percolations has rendered foul and'unfit for use the water of the plaintiff’s well. This puts the defendant in the position of maintaining a private nuisance of a continuing character, which injures the property of his neighbor. That such an injury is actionable is sustained by many authorities; among others, The Pottstown Gas Co. v. Murphy, 3 Wr. 257; Shuter v. The City of Philadelphia, 3 Phila. R. 228; Jacobs v. Worrall, 15 Leg. Int. 139. We assent to the opinion of Judge Hare, as found in the case last cited, that the right to have a privy is a right only so long as it is used without material injury to the property'of others ; when its fetid contents begin to leak over upon the adjoining lands it becomes a nuisance and is actionable as such. The plea of necessity fails to justify an act of this kind, for the proposition that one man should, under any circumstances, be permitted to deposit any part of his health-destroying filth in or upon his neighbor’s premises, is simply absurd. Nor is it less, contrary to our ideas of common sense, that he should be allowed to supplement his own cesspool with his neighbor’s water well. Here, however, there is found no necessity for this wrongful act of the defendant, for by a proper construction of his vault he might have used his privy without injury to Dill’s property, for this wrong therefore he has no excuse but the saving of a few dollars — an excuse, we need hardly say, that is utterly without merit.

Nor is the right to equitable interference in order to restrain the continuance of a private nuisance any more doubtful than the right to a common law action. Mr. Eispham, in his work on the Principles of Equity, sec. 439, says that this jurisdiction in cases of nuisance is ancient, and has been traced back to the reign of Elizabeth, since which time it has been constantly exercised ; that in these cases equity has concurrent jurisdiction with the law courts, and that this jurisdiction is justified on the ground of restraining irreparable mischief, or preventing a multiplicity of suits. To the same point is Stewart’s Appeal, 6 P. F. S. 413, and a case almost exactly like the one in hand is Womersley v. Church, 17 L. T. R. (N. S.) 190, where the bill was to restrain the defendant from using a cess-pool, on his own property, in such a manner as to pollute the water feeding the plaintiff’s well.

Decree affirmed with costs to be paid by the appellant.  