Dubois v. Glaub

[242] The opinion of the court was delivered, May 15th 1866, by Strong, J. Were we of opinion that the court below erred in imposing terms upon the defendants, when opening the judgment given by default, it would not affect the judgment finally rendered. The defendants accepted the terms offered, pleaded to issue, and went on to- trial. If Mr. Chapin withdrew their former appearance and plea without authority, they may possibly have recourse to him. To us the withdrawal of the appearance and plea appears to have been a device to postpone a trial. However that may have been after the appearance was withdrawn, the record stood as if none had ever been entered, and we are not prepared to say the court had then no power to give judgment for default of appearance, the declaration having been filed nearly three years previously. Our Act of Assembly of June 13th 1836, does authorize judgment for default of appearance in personal actions, and the case of Michew v. McCoy, 3 W. & S. 502, relied upon by the defendants, has no bearing on this case. That was an action of ejectment, the statutory provisions in regard to which are unlike those enacted for personal actions. If, then, the court had power to order a judgment for default of appearance, opening it was subject to their discretion exclusively, and the defendants cannot be heard here complaining of the terms imposed, especially after they accepted them. The second assignment of error presents the question, whether the defendants were liable to the plaintiff for injuries sustained by him, in consequence of their having raised the creek by an artificial flood. “ Bennett’s Branch of the Sinnemahoning” is a public highway, declared such by law. The defendants, therefore, had no right to interfere with the natural flow of the water, except so far as they were licensed by the Mill-Dam Act of March 23d 1803. They were not authorized to build dams for any other purposes than those described in that act. A dam to provide for a “ splash” flood is illegal, and of course its consequences are illegal. To hold that the builder of such a dam might at his pleasure open it, and precipitate a flood into the creek below, sweeping away and destroying the property of infra riprarian owners or navigators on the stream, without responsibility, would be extraordinary. Even for the purpose of floating logs, the owners of such a dam have but a eommqn right of navigation. They must so use the stream as not to exclude other navigators. They may not therefore by artificial means send their logs down the current’ in such a mass as to render navigation by others impossible, or to make the destruction of other rafts than their own certain. We think, therefore, the charge of the court, to which exception has been taken in this assignment, was entirely correct. The third and sixth assignments relate to the instruction given respecting the assessment of damages. In this we perceive no error. The [243] court did not instruct the jury that the damages arising from depreciation in the price of lumber should be estimated according to the price at Lock Haven. The whole that was said upon this subject must be considered. It is plain from the evidence there was no market on. the creek where the plaintiff’s logs were. They were rafted and prepared for transportation to a market, and Lock Haven was the nearest. The price at Lock Haven was necessarily some guide to a determination of the value on the creek. And if the fact was that the plaintiff was unable to run his logs to market, in consequence of the illegal acts of the defendants, until after the price of lumber had fallen, the injury he sustained in this particular was a proximate consequence of the wrong, and proper to be considered in estimating the damages. The remaining assignments raise the question, whether the plaintiff could recover for the injury done to two of the rafts, which were not his sole property, but which he owned jointly with Anthony Kuntz. This is settled by the following cases: Addison v. Overend, 6 T. R. 766; Sedgworth v. Overend, 7 Id. 279 ; Wheelwright v. Depeyster, 1 Johns. 471; Agnew v. Johnston, 5 Harris 378. These cases assert the doctrine, that though joint-owners of chattels should join in actions for injuries to the chattels, yet if one sue alone the defendant can take advantage of the nonjoinder only by plea in abatement, and that if he does not thus plead the plaintiff may recover for the injury to his interest. This seems to be anomalous, but it is sustained by the cases cited. The judgment is affirmed.