Leiby v. Clear Spring Water Co.

Opinion by Mb. Justice Mestbezat, The four witnesses, the admission of whose testimony is the subject of the first, second, third and fourth assignments, disclosed a familiarity with the premises and values of land in the community in which this property is situated that made them clearly competent to testify to its value and to 'estimate the damages sustained by the plaintiff. Yellis’s testimony, introduced for the purpose of showing one of the several elements of damages, was properly admitted by the trial court. “ It has never been said or held,” says the court in Danville, Hazleton and Wilkesbarre Co. v. Gearhart, 81* Pa. 260, “ that the elements of computation are not to be given in evidence as the. means of enabling the viewers or the jury to reach a just conclusion upon the whole matter. So to hold would be to contradict the act authorizing the view and assessment.” The grant of the water right contained in the deed from Deichman to Yellis was correctly interpreted by the learned trial judge, and his charge relative thereto is not open to objection. The grant gave to Yellis and his assigns the right to have the water of the creek flow unobstructed through the land now owned by the plaintiff and to the grantee’s land in the accustomed or natural channel. It did not invest Yellis or his. grantee with the right to enter the premises of the plaintiff and take the water. No such authority can be found in the grant. It deprived Deichman of the use of the water for “ watering and improving the meadow ground,” and prevented him, his heirs, or assigns, from erecting a grist or sawmill along the creek and on the ground now owned by the plaintiff. The trial judge told the jury that such was the effect of the grant and that it gave to the defendant the right to use all the water that flowed through the plaintiff’s land and, in the natural channel, entered the defendant’s premises. This, of course, included the water that came from the spring on that part of the plaintiff’s land now condemned by the defendant company. But, as properly observed by the court, the ■ plaintiff was entitled to have considered as an element of her damages the value of this spring to her land as affected by the right of the defendant company to have its water flow materially undiminished to the company’s land in the channel of the creek as the other water did. These instructions as to the interpre [645] tation of the grant and the water rights of the defendant under it were as favorable as the defendant company could reasonably ask. We are not convinced that, as argued by defendant’s counsel, the court in its charge gave undue prominence to the value of the premises as fixed by the plaintiff’s witnesses. Tbe court after stating that “a good bit of evidence has been given us as to tbe nature of this property,” directed the attention of the jury in a general way to the maximum and minimum values placed by the witnesses of both parties on tbe premises before and after the company had appropriated for its use a part of tbe plaintiff’s land. He admonished the jury that tbey “ must consider tbe evidence of the witnesses themselves and not take it from the court.” If, as claimed by the defendant, the plaintiff’s witnesses were discredited by their cross-examination, the jury having the whole testimony before them with comments of counsel would, under the charge, be in a position to consider the testimony elicited on cross-examination without special attention being called to it by the court. The very full and clear opinion filled by the learned trial judge in refusing a new trial relieves ns from the necessity of a further discussion of the question raised by the assignments of error. The judgment is affirmed.