recognizing the rule, but declining to apply it to a faultless landowner
How later courts described this case
- recognizing the rule, but declining to apply it to a faultless landowner
Written by the judges who cited it.
The opinion
Dissenting Opinion by
Judge Mencer :
I respectfully dissent. I would have had great difficulty under the factual situation of this case in concluding, as did the lower court, that Wyeth was in violation of Section 401 of The Clean Streams Law. 1 However, the correctness of that determination is not challenged in this appeal and is accepted by the majority. Consequently, the abatement provisions of Section 601 of The Clean Streams Law 2 control, and the burden is *241 upon Wyeth to abate the nuisance or to show that abatement cannot be accomplished except by an expenditure which would substantially deprive it of the use of its property. See Herring v. H. W. Walker Company, 409 Pa. 126 , 185 A. 2d 565 (1962).
I would sustain the Commonwealth’s exceptions to the lower court’s decree nisi insofar as the decree nisi would result in the dismissal of the Commonwealth’s complaint upon failure of both parties to submit abatement plans within the time allowed. Further, I would remand the case to the lower court to fix a reasonable time during which Wyeth may mate provisions for the abatement of the nuisance found by the lower court to exist or establish that abatement cannot be accomplished except by an expenditure which would substantially deprive it of the use of its property. If Wyeth were to fail to meet its burden in regard to one or the other of these alternatives, the injunction sought by the Commonwealth should issue.
Judge Blatt joins in this dissent.
Act of June 22, 1937, P. L. 1987, as amended, 35 P.S. §691.401.
35 P.S. §691.601.