The Supreme Court affirmed the decree of the Common Pleas on April 10, 1882, in the following opinion per:
Gordon, J.
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 headway.
As the master has found, the privy vault of defendant, Ilaugh, by its offensive percolation, 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. vs. Murphy, 3 Wr. 257; Shuter v. The City of Philadelphia, 3 Phila. R. 228; Jacobs v. Worrell, 15 Legal Intell. 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 cess-pool 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 Bill’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. Bispham, 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 this jurisdiction is justified on the ground of restraining irreparable mischief or preventing a multiplicity of suits. To the same point is Stewart’s Case, 6 P. F. S. 413. And a case almost exactly like the one in hand is Womersly 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 on the plaintiff’s well.
Decree affirmed, with costs to be paid by the appellants.