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John B. Kelly Inc. v. Lehigh Nav. Coal Co.

decided: October 4, 1945.

JOHN B. KELLY, INC.,
v.
LEHIGH NAV. COAL CO., INC., ET AL.



Author: Mclaughlin

Before ALBERT LEE STEPHENS, GOODRICH, and McLAUGHLIN, Circuit Judges.

McLAUGHLIN, Circuit Judge.

This appeal is from an order of the District Court dismissing the bill of complaint in this case. Plaintiff is a Delaware corporation. The defendants are corporations of the Commonwealth of Pennsylvania. The first paragraph of the bill of complaint alleges that "the amount in controversy exceeds, exclusive of interest and costs, the sum of Three Thousand Dollard ($3,000)." The complaint goes on to say that plaintiff is in the brick masonry construction work business, located in Philadelphia. Its property borders the eastern bank of the lower Schuylkill River for 100 feet and on those premises, which it owns in fee simple, are located its piers and docks. It is then stated that the defendants, who are coal mine operators with plants adjacent to the upper Schuylkill River, or its tributary streams, clean their coal with large quantities of water and discharge the refuse coal dust, fine coal, culm, silt, wastes, etc., into the Schuylkill and its tributaties. The bill furthers sets up that large deposits of the said waste materials from past operations have accumulated on the lands of the defendant; that the defendants have failed to properly secure these and as a result of natural erosion they have heavily charged and polluted the Schuylkill and its tributary streams. It is said that the waste has moved down stream and caused the bed of the Schuylkill River adjacent to plaintiff's property to so rise that it is impossible to bring boats close enough to plaintiff's property to unload them which latter process could be accomplished with the Schuylkill bed in its normal condition. It is charged that the said waste materials have and are moving progressively down stream to and upon the premises of the plaintiff and are destroying the value of the Schuylkill River for navigation and the value of plaintiff's property for the receipt of building materials transported by boat or barges. Paragraph 11 of the bill of complaint reads: "The fine coal, coal dirt, culm, refuse materials and silt wastes discharged by the defendants, together with those wastes eroded from the culm banks and deposits of the defendants, are so united, combined and intermingled within the waters of said Schuylkill River and its tributary streams as to be impossible of tracing to any individual defendant, when dredged from the said river adjacent to plaintiff's premises and thus the injury and damage of the plaintiff is brought about by the united and combined acts of the defendants." It is further asserted that the bed of the river has been so raised and its channel so narrowed "that the level of its waters is raised abnormally whenever there is any appreciable increase in the quantity of water in said River, through rains or otherwise, thus causing it to overflow its banks at and along plaintiff's property and resulting in great damage to the plaintiff's property and greatly disrupting its business." It is stated that both the Schuylkill River and the Delaware River, into which the Schuylkill River discharges at Philadelphia, are navigable rivers of the United States and the deposit or discharge of the waste materials into the Schuylkill River and its tributary streams is prohibited by Section 13 of the River and Harbor Act of March 4, 1899, 33 U.S.C.A. ยง 407, and other acts of the Congress. It is alleged that the said discharge and deposit is a nuisance by reason of the fact that such waste materials are carried by the river "thus affecting in various ways and to various degrees all communities, and their residents, along said river." Paragraph 15 of the bill of complaint reads: "That the wanton, wilful negligence and recklessness of the defendants in carrying on their coal operations in the manner hereinbefore described are a continuing trespass which constantly increases the deposits of fine coal, coal dirt, silt, culm and other waste materials in the bed of said River and thus threaten to make permanent the injury and damage to plaintiff." Paragraph 16 states that by reason of the discharge of the waste into the Schuylkill and its tributaries, "by the wilful, wanton, reckless and negligent acts of the defendants, the plaintiff has suffered large and irreparable damages through the permanent depreciation of the value of its property and through the curtailment of the lawful uses to which such property might be put by plaintiff."

Plaintiff then, asserting that it needs equitable relief, prays that:

"1. That the said defendants, their agents, servants and employees, be perpetually enjoined from washing, depositing, placing or discharging any fine coal, coal dirt, culm, silt, wastes or refuse material of any kind, from their mines, collieries, washeries or coal preparation plants, either into said Schuylkill or its tributary streams, or upon any land adjacent thereto where the said waste materials may or can be washed into the said River or its tributaries.

"2. That the defendants be required to take adequate measures and precautions to prevent the erosion and escape into said Schuylkill River or its tributary streams of the deposits, piles, banks, or embankments of such waste materials previously deposited by the defendants.

"3. That the amount of damage sustained by plaintiff through the said illegal acts of the defendants be ascertained and the amount so ascertained be assessed against each defendant in proportion to his contribution to the plaintiff's injury or damage as determined by this Honorable Court.

"4. That defendants pay to plaintiff all costs necessary to restore the channel of the Schuylkill River adjacent to plaintiff's property.

"5. That defendants pay to plaintiff the costs of this action.

"6. Such other and further relief as this Honorable Court may deem proper."

The District Judge dismissed the complaint on the single ground that "Since, therefore, the action against these defendants is, under Pennsylvania law, several and nor joint, and the complaint fails to show that the amount in controversy with respect to the claim against any single defendant exceeds the jurisdictional amount, it is insufficient to show that this Court has jurisdiction of the cause."

Plaintiff, asserting a nuisance and continuing trespass by the defendants to and upon its property, presents an equitable cause of action.It alleges irreparable damage to that property and to its business and it prays for an injunction against the defendants. In addition, plaintiff does ask that its money damages be ascertained and assessed against each defendant in proportion to his contribution to plaintiff's injury or damage as determined by the District Court, but the hard core of plaintiff's suit is the invasion of its property right and the sought for protection against such trespass.

Pennsylvania law, controlling on substantive matters involved in the present controversy, holds that the liability of the defendant is several and not joint. Little Schuylkill Navigation, Railroad and Coal Co. v. Richard's Adm'r, 57 Pa. 142, 98 Am.Dec. 209; Gallagher v. Kemmerer, 144 Pa. 509, 22 A. 970, 27 Am.St.Rep. 673; Eckman v. Lehigh & Wilkes-Barre Coal Co., 50 Pa.Super. 427. Here, however, the money damage allegations of the bill are merely a collateral item which the District Court can pass upon provided it possesses jurisdiction of the all important injunctive feature of the litigation. Kinney-Coastal Oil Co. et al. v. Kieffer et al., 277 U.S. 488, 48 S. Ct. 580, 72 L. Ed. 961; McGowan v. Parish, 237 U.S. 285, 35 S. Ct. 543, 59 L. Ed. 955; Camp v. Boyd, 229 U.S. 530, 33 S. Ct. 785, 57 L. Ed. 1317.

It is well settled that in an action of this nature, the jurisdictional amount is to be calculated on the basis of the property right which is being injured.If that property right has a value in excess of $3,000 the Federal Court has jurisdiction of such a diversity suit even though the plaintiff had not suffered $3,000 damages at the time suit was instituted. Glenwood Light & Water Co. v. Mutual Light, Heat & Power Co., 239 U.S. 121, 36 S. Ct. 30, 60 L. Ed. 174; Scott v. Donald, 165 U.S. 107, 17 S. Ct. 262, 41 L. Ed. 648; McNeill v. Southern Railway Co., 202 U.S. 543, 26 S. Ct. 722, 50 L. Ed. 1142; Bittermann v. Louisville & Nashville R.R., 207 U.S. 205, 28 S. Ct. 91, 52 L. Ed. 171, 12 Ann.Cas. 693; Berryman v. Board of Trustees of Whitman College, 222 U.S. 334, 32 S. Ct. 147, 56 L. Ed. 225; Ridder Bros. v. Blethen, 9 Cir., 142 F.2d 395; Delaware, L. & W.R. Co. v. Frank et al., 2 Cir., 110 F. 689; Board of Trade of City of Chicago v. Cella Commission Co. et al., 8 Cir., 145 F. 28; Miles Laboratories v. Seignious, D.C., 30 F.Supp. 549. The Glenwood case, supra, well exemplifies the rationale of the above decisions. In that matter, the plaintiff maintained an electric plant and a system of wires furnishing electricity to its consumers. Defendant set up its own wires which interfered, or threatened to interfere, with those of the plaintiff. Though the value of plaintiff's ...


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