Philadelphia v. Provident

While the Board of Health of Philadelphia has power to declare and abate public nuisances: Kennedy v. Board of Health, 2 Pa. 366, and may require privy-wells to be cleaned and purified, yet they have no power to demand the construction of water-closets and connections, so as to charge the lot-owners with the cost thereof upon a municipal claim for lien.

APPEAL BY PLAINTIFF FROM THE COURT OF COMMON PLEAS NO. 3 OF PHILADELPHIA COUNTY. Nos. 6, 7 January Term 1890, Sup. Ct.; court below, Nos. 124, 125 September Term 1885, C. P. No. 3. On December 21, 1885, an amicable action, as in a scire facias sur municipal claim, was begun by the city of Philadelphia against the Provident Life & Trust Company, Eliza Bouvier, et al., registered owners. Issue. At the trial of this cause and another like it, together, on November 15, 1888, the plaintiff put in evidence municipal claims, against certain lots described, reciting that the Board of Health of the city of Philadelphia had removed nuisances therefrom, consisting of foul privy-wells, after due notice to the owners to remove said nuisances, and non-compliance with said notice on their part, which work was done on May 30, 1885, and in the doing of it the Board of Health had incurred an expense to certaifi amounts for abating nuisances and constructing proper water-closets, for which the claims were filed as liens upon said properties. The plaintiff then rested. The defendants put in evidence an agreement of the parties that the Board of Health had served notices upon the defendants which were as follows : “ You are hereby notified and required to have immediately removed a certain nuisance on the above described property arising from a full privy-well; to be abandoned, cleaned to the bottom, filled with clean earth, and water-closets constructed with proper trap and sewer connections; which nuisance has been declared to have a tendency to endanger and be prejudicial to the public health ; on failure to do and perform which, the said nuisance will be removed at your expense, and a lien entered agreeably to the provisions of the act of assembly. “ By order of Board of Health.” That' defendants failed to comply therewith; that plaintiff then employed a contractor, who cleaned out the wells complained of, filled them up with earth, and constructed hopper water-closets; that after the wells were emptied and filled up by the Board of Health, the influence previously existing threatening public health was thereby for the time abated, and no further ill effect could be apprehended therefrom, until the occupants of the premises should again make use of the spot where the wells had been by the deposit of filth thereon. The defendants had paid for the cleaning of the wells, but refused to pay for the water-closets. At the close of the testimony the court instructed the jury to return verdicts for the defendants.* Such verdicts having been rendered, judgment was entered thereon, when the plaintiff took these appeals, assigning said instruction for error.