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Commonwealth v. Barnes & Tucker Co.

Citation: 7 ELR 20394
No. No. 896-A, 371 A.2d 461/10 ERC 1559/472 Pa. 115, (Pa., 02/28/1977) Aff'd

The court affirms a lower court's decree, 6 ELR 20466, requiring defendant to operate the Duman Dam pumping facility in order to prevent the discharge of untreated acid mine water from one of its abandoned coal mines. On a previous appeal, 4 ELR 20545, the court held that the discharge constituted a public nuisance which the Commonwealth has the power to abate. The lower court's order was neither an unreasonable exercise of the state's police power nor an unconstitutional "taking" of private property. The fact that some of the water may originate in other mines is immaterial since the source of the discharge is plaintiff's mine. The fact that the mine is now abandoned does not affect the appropriateness of invoking the police power to dispel this immediately dangerous condition. Moreover, restrictions or obligations on the use or ownership of private property such as those contained in the lower court's decree which are imposed to protect the public health or safety and are reasonably necessary to dispel a particular danger do not constitute a taking. The defendant failed to carry its burden of proof on its claims that there are alternative, more reasonable means of abating the nuisance nd that the remedy imposed was unduly oppressive because of its economic impact.

Counsel for Plaintiff-Appellee
K. W. James Rochow
Department of Justice
Capitol Annex, Harrisburg PA 17120
(717) 787-3391

Counsel for Defendant-Appellant
Cloyd R. Mellott, C. Arthur Wilson, Jr., John R. Kenrick
Eckert, Seamans, Cherin & Mellott
42nd Floor, 600 Grant St., Pittsburgh PA 15219
(412) 566-6000

Frank A. Sinon
Rhoads, Sinon & Reader
410 N. 3rd St., Harrisburg PA 17108
(717) 233-5731

James D. Crawford
Schnader, Harrison, Segal & Lewis
1719 Packard Bldg., Philadelphia PA 19102
(215) 491-0400

Before JONES, C. J., and EAGEN, O'BRIEN, ROBERTS, POMEROY and NIX, JJ.

MANDERINO, J., did not participate in the consideration or decision of this case.