
    Rudy v. Myton, Appellant
    (No. 2).
    
      Equity — Injunction—Preliminary injunction.
    
    On a bill in equity to restrain defendants from cutting off a supply of water which the plaintiff had long enjoyed, a temporary injunction was granted to preserve the status quo until final hearing. Held, that as the case was presented by the evidence this was not error, although it appeared that the controlling questions were questions of fact upon winch a difference of opinion was expressed by the witnesses.
    Argued Nov. 6, 1901.
    Appeal, No. 189, Oct. T., 1901, by defendants, from decree of C. P. Huntingdon Co., Sept. T.. 1901, No. 94, on bill in equity, in case of Henry Rudy, Matthew G. Rudy, Rebecca M. Rudy, Ida C. Rudy, S. G. Rudy, Isabella Steel and Anna May Weyer v. Benner R. Myton, Thomas F. Shipton and Mary P. Shipton.
    Before Rice, P. J., Beaver, Orlady, W. W. Porter and W. D. Porter, JJ.
    Affirmed.
    Bill in equity for an injunction.
    The bill set forth: That on the lands of Myton is a.mever failing spring of water, with two openings, one of which is walled up, that the water of the walled up opening is carried down in pipes past plaintiffs’ house ; that plaintiffs claim they are entitled to,one third-of the water flowing down said pipes; that Myton dug a trench from his residence to the unwalled opening and is about to insert one and one-fourth inch pipes into said unwalled opening and convey its waters to .the residences of defendants; that if this is done .it will diminish the flow of water down the pipes from the walled up opening and do the plaintiffs irreparable injury and praying for an injunction to restrain him,
    
      . The answer set forth: That instead of one. spring there are .two separate and distinct springs, known as the walled and unwalled springs and that plaintiffs had no right or title to the waters of either; that on June 30,1899, Henry Rudy drove an iron pipe down the stand pipe that conveyed the water of the walled up spring to the residences of plaintiffs and defendants, thus depriving defendants of nearly all the water flowing down said pipes. and carried, it to the residence of plaintiffs, and immediately thereafter, upon application of Margaret Rudy, a preliminary injunction was issued .restraining defendants from interfering with said’pipes'arid still continues in force; that this occasioned .great loss and damage to defendants; .that Myton was about to convey by one. and one-fourth inch pipes water from the unwalled spring-to-his residence ; that this could not affect the flow of water down the pipes or cause the plaintiff irreparable damage, because none of the water from the unwalled spring flows down or into the pipes, but it all flows down and over the land to Myton.
    ■ The court continued the preliminary injunction.,
    . Error assigned was in continuing preliminary injunction on the final hearing.
    
      James S. Woods and W. U. Woods, with them T. W. Myton, for appellants. . . .
    
      Thomas F. Bailey, with him U. E. Waite, for appellee.
    February 14, 1902:
   Opinión by

Rice, P. J.,

' The very important if not the controlling questions, namely, whether what is called the walled spring and what is called the unwalled spring are in reality but a single spring with two ppenings, and whether the effect of introducing a pipe sufficient to drain the latter will also drain the former, ¿ire ques-ions of fact upon which a difference of opinion was • expressed, by the witnesses. It was stated on the argument thafthe case would soon be tried; and for aught we know, it has since been tried.. But whether it has or not, it is not claimed that the pendency.of this appeal operated to suspend the trial of the case. See Sheaffer and Heckscher’s Appeals, 100 Pa. 379. The case does not turn solely upon a question of law, and it is too well settled to require the citation of authority, that an interlocutory injunction is provisional merely, and concludes no rights. We, therefore, do not feel called upon to discuss the questions which on final hearing may present an entirely different aspect. As the case is now presented the majority of the judges who heard this appeal are of opinion that the court of common pleas committed no error in awarding a temporary injunction to preserve the status quo until final hearing. This is all that we decide.

The decree is affirmed, and the appeal dismissed at the costs of the appellants.  