Huddleston v. Borough of West Bellevue

Mr. Justice Paxson delivered the opinion of the court, January 4th, 1886. It was error to admit the evidence of Thomas Paisley, contained in the first assignment of error. It was irrelevant; it had nothing to do with the issue before the jury. It was, however, entirely harmless. It could have injured no one, and if there were no other error we would not reverse for such a cause. It was more serious error to admit the declarations of David Shafer, referred to in the second assignment. Shafer was the father of the plaintiff and was her predecessor in the title. The defendants proved by several witnesses that while Shafer was the owner, and several years before his death, he closed [121] up a drain which turned the water from the road upon a portion of the premises then owned by him; that the effect of closing this drain was to stop this flow of water and to turn it down the public highway until it reached the place where it was discharged upon the Shaw lot, where the washout occurred. Hence the defendants contended that the injury of which the plaintiff complains was in reality caused by the defective drainage made by her predecessor in the title; that by thus stopping'up said drain he had fixed an easement or servitude upon tins property, which was visible to the eye, and that his successor in the title took it subject to such servitude; hence that his declarations made at the time the drain was changed were competent evidence against the plaintiff. The theory of this branch of the defence is based upon mistaken premises. David Shafer imposed no servitude upon his property. On the contrary he prevented the water from flowing upon his land and turned it back, as before stated, upon the public highway, in Killbuck township, if he had turned the water upon his land there would have been more show of reason in this proposition. It is said, however, that the effect of this action on his part was to carry the water along the gutters or water tables of Beaver road, upon a down grade, until with its large accumulations it was discharged upon the Shaw lot. Conceding this to be so, what follows? As his right to stop this drain was never questioned in Mr. Shafer’s life time nor since, we must asgume that it was lawfully done. It may be he thought that more than his share of the water was discharged upon his land, or he may have done it, as was stated by some of the witnesses, to keep his lot dry for picnic parties. Be that as it may, he stopped the flow of the water over his land by closing the drain, without objection from the municipal authorities, and turned it down the road. He was not responsible for its further flow. It was the business of the township to look after that. Shafer was not bound to follow it up and see where it went to. Nor had the township any more right to throw it upon the plaintiff’s land further down the road than upon the land of any other citizen. Moreover, it was the business of the municipal authorities to protect his land from any such injurious overflow. The fact that Shafer bought the Shaw lot afterwards, and that it has now come into the possession of the plaintiff, in no way affects the case. She has the same right to have her property at this point protected as any other citizen would have if he owned it. We see nothing to justify the admission of Mr. Shafer’s declarations in evidence. For the same reason we sustain the third assignment. I am unable to see the relevancy of the testimony of John [122] Birmingham, contained in the fourth assignment. An inquiry as to the expense of taking the water across the road at the point referred to was not pertinent to the issue. It was, moreover, well calculated to prejudice the case of the plaintiff. It may be that after collecting the water in the highway for this long distance, it might be an expensive thing to turn such a volume of it across the road at this point. That, however, was not the question. Aside from this, the witness was not an engineer, nor a road builder, and was not shown to have had any knowledge upon the subject. The plaintiff’s second and third points should have been affirmed distinctly and without qualification. By the first point the learned judge was asked to say to the jury that: “ If you find that this Beaver road runs along and through land the surface drainage of which is naturally down depressions and ravines leading from said road directly to the Ohio river, and that instead of the said drainage being conducted into such natural drainage or permitted to flow to the river therein, it is accumulated and carried on by artificial drains on the sides of said road and by artificial embankments held therein, the party or parties so accumulating it, if damage is done, are liable for it.” The third point stated substantially the same principle, in slightly differing phraseology. The answer to them was: “ The other points of the respective parties, except so far as covered by the general charge, are refused.” This is a very unsatisfactory way of answering points. It renders'the point of no possible value with the jury, and always adds greatly to our labors. We are often compelled to go again and again through a long charge to see if it covers the respective points. If the practice is continued, and especially if it increases, some of our earlier decisions will have to be modified, and a more literal compliance with the Act .of Assembly enforced. For the purposes of this case we must regard the plaintiff’s second and third points as refused. No jury could gather their affirmance from the general charge. The drainage of water appears • to have been conducted from Delp’s land in Bellevue borough, in two gutters, one on each side of the road, a distance of about 1,462 feet to the line of Killbuck township, and that just over the line of said borough the said township joins said gutters by a culvert in the road, and by these drains thus united the surface water flow of rains and storms was accumulated and carried the further distance of about 800 feet, without any outflow from the road. Now, if the fact be, as the points assume, and the [123] jury were asked to find, there were along this long distance several natural drains or ravines down which the water could have been turned' and thus discharged into the Ohio river, it is too plain for argument that the accumulation of it until it was liable to become a destructive flood would render the persons or authorities bv whom it was done responsible for all the consequences of such accumulation. The eighth assignment raises the question as to the measure of damages. Upon this point we see no serious error in the charge of the court. The jury were instructed that they might give such damages for the injury as they thought the plaintiff had sustained, and that in estimating them they had a right to take inth consideration the cost of filling up the cut caused by the washout. Nothing was claimed beyond compensatory damages. The ninth assignment raises the question of the respective liability of the defendants, if liable at all. The learned judge instructed the jury that, “If the plaintiff recovers at all, she must recover only the damage done by the least culpable; otherwise we would have one party possiblj' compelled to pay for damages which he did not do, and had no necessary part in contributing to ; consequently your verdict, if for the plaintiff against both defendants, will' be for the amount of damage you find was done by the least culpable of the two parties defendant.” The first thought suggested by this ruling is that the plaintiff may not recover the full amount of damage, if any, she has sustained. If this be so, there must be error, somewhere. Either the charge must be incorrect, or a mistake has been made in joining the two municipalities in one suit. If the injury be their joint act the plaintiff is entitled in a suit against both to recover the full amount of loss she has sustained. For a tort committed jointly the law will not apportion the guilt or responsibility of the tort feasors, but holds them all for what the most culpable ought to pay : McCarthy v. De Armit, 1 Pennypacker, 297. The rule laid down by the learned judge was that the jury should find only for the injury done by the least culpable of the defendants. This is the rule when punitive damages are claimed, and as such damages were not claimed in this case, it does not apply. Little Schuylkill Nav. Co. v. Richards, 7 P. F. S., 142, and Seely v. Alden, 11 Id., 302, are not in point. They were,both actions for polluting a stream of water; the acts of the respective defendants were clearly several, and it was ruled that one defendant could not be held for the tan or coal dust thrown into the stream by another defendant. In the case in hand the borough of Bellevue collects its water and carries it along [124] the road until it reaches the line between the borough and the township. There the borough discharges it upon the highway in Killbuck. If the latter receives it without objection, then the township becomes responsible for its further flow. I am unable to see how the borough can be held liable to the plaintiff, for water poured, not upon her land, but upon Kill-buck township. But as this point was not raised it will not now be decided. We see nothing in the remaining assignments of error which requires discussion. Judgment reversed, and a venire facias de novo awarded.