Bare v. Hoffman

Mr. Justice Mercur. delivered the opinion of the court, October 12th 1875. All the errors assigned, except the first and sixteenth, may be considered together. They relate to the measure of damages. Each party owned and operated a tannery supplied with water from the same stream. Bare also, owned other lands situate on the same stream above the tanneries. On those lands he placed a pipe in the stream, thereby withdrawing a portion of the water from its accustomed channel, and conveying it to his tannery. Hoffman, under a previous grant from Bare, drew the water necessary to supply his tannery, through a pipe placed in the stream above the one put in by Bare. The specific complaint was that Bare took, and failed to return, the water that Hoffman had been accustomed to use, and which he required in carrying away the exhausted tan and offal that accumulated on his premises. About two months after the water was thus diverted by Bare this action was brought to recover damages. The defendant in error was permitted, under objection, to give evidence of the permanent injury done to the market value of his tannery by this diversion of the water; and the court charged the jury he was entitled to recover the permanent damages thus done to the freehold. The whole damage of which the defendant in error complained, was caused by Bare’s placing a pipe in the stream on his own land. A severance of the connection of the pipe with the stream, would cause the water to run in its accustomed channel, and remove the whole cause of complaint. It is not the case of an entry on the land of the defendant in error, and a severance of any part of his freehold; nor of depositing a permanent nuisance thereon, as in Seely v. Alden, 11 P. F. Smith 302. Bare neither took anything off from Hoffman’s land, nor deposited anything thereon. The act he committed was not of such a permanent character as to assume it to continue through all coming time, and to justify the assessment of damages accordingly. The general rule is that successive actions may be brought as as long as the obstruction is maintained. A recovery in the first action establishes the plaintiff’s right. Subsequent actions are to recover damages for a continuance of the • obstruction. Hoffman was both the owner and the occupier of his tannery. Hence the authorities cited, and the argument made, as to the separate reme [78] dies of a tenant and reversioner, do not apply. The whole right was in him. For a continued obstruction to the flow of water he could sustain successive actions. In each he could recover the damages he had sustained subsequently to the last preceding action. We think, therefore, the learned judge erred in permitting evidence to be given of the permanent injury to the market value of the tannery, and in charging that the defendant in error was entitled to recover the permanent damage done to the freehold. If the defendant in yrror was entitled to recover for damages which he had sustained prior to the commencement of the suit, he was entitled to them as of that date. We therefore see no error in permitting the jury to compute interest thereon down to the time of the verdict as a mode of arriving at a just compensation. The reason of this is fully sustained by Railroad Co. v. Gesner, 8 Harris 240; Penna. Railroad Co. v. Cooper, 8 P. F. Smith 408; and by D. L. and Western Railroad Co. v. Burson, 11 Id. 869. The application for a jury to go upon and view the premises, was not made until the week on which the cause was set down for trial, and on the very day it was liable to be tried. It was actually tried on the next day. To have granted the application would therefore have delayed the trial of the cause. It wás not made in time. The court therefore committed no error in refusing it on that ground alone. The sixteenth assignment is to the admission of evidence showing the plaintiff in error had twice, after suit brought, changed the place where his pipe entered the stream. The object of this evidence is not shown by the record. If those acts were wrongful another action would lie for them. On the argument it was contended that they showed knowledge of the plaintiff in error, that his former act in diverting the water, was wrongful. We are unable to see that they lead, or ought to lead, to any such conclusion. They were calculated to confuse and mislead the jury, and ought not to have been admitted. It is true in Railroad Co. v. McElwee, 17 P. F. Smith 311, where the action was for negligence, it was held that an act done after the injury, might be shown to prove knowledge of the previous unsafe condition of the structure; yet the reason on which it was sustained is inapplicable to the present case. The assignment is therefore sustained. The defendant in error having collected the judgment by execution, the plaintiff is entitled to an order of restitution : Duncan v. Fitzpatrick, 13 S. & R. 292; Breading v. Blocher, 5 Casey 347. Therefore, judgment reversed, restitution ordered, and a venire facias de novo awarded.