Lynch v. Troxell

Opinion by Me. Justice Brown, Under the undisputed facts in this case the right of the appellant to maintain a dam at or near the outlet of Harvey’s lake cannot be questioned by the appellee ; but she does have a right to complain, if, in replacing the old one with the present, he caused the water to be forced back upon her land and subjected it to overflow from which it had not previously suffered. When he built the new dam in 1895, at or near the place where the old one had stood, it was not—taking into consideration the rights of the riparian owners—simply a question whether the new one should be no higher then the old, but whether it would be so constructed and. maintained as to throw no more water back upon the lands of the appellee than had been forced there by the old. She would have had a right at all times to insist that the old dam should remain unchanged, if any change in it would have subjected her lands to increased flooding, and she has the same right to complain of the reconstruction of it, if there are changes in it which have produced the same result. No express grant was shown to the appellant or his predecessors in title to force the water back to any definite or fixed height, and, his right being a prescriptive one, he must keep the water at the height at which it had been maintained for twenty-one years before the alleged injuries took place. The complaint of the appellee is, that the new dam is so constructed that the water is forced back upon her land to a greater height than it had been accustomed to flow during the maintenance of the old dam, the wasteway of which was twice, or more than twice, the capacity of that in the new one. If there is this change in the dam, and it has resulted in the injuries of which the plaintiff complains, she is entitled to recover. The instruction of the learned trial judge upon this point was correct. The extent of a presumed grant to swell water upon the land of an adjoining owner is measured by the land actually flooded, and not by the height of the dam by which the swelling is oc — 170 — easioned. If, by means of repairs to a dam, the land be flooded to a greater extent than it had been for twenty-one years before, the owner of the dam is liable for the injury, although the height of the dam may not have been increased: Mertz v. Dorney, 25 Pa. 519. This rule is not confined to mere repairs of a dam. If a new one replace an old one, and in its construction there is such a change that the water is forced back to a greater extent than it had been for a period of twenty-one years by the old dam, the owner of the dam is liable for the injuries sustained, although the height of the new dam may not have been increased, but, as a matter of fact, may even be lower than the old one. This may be regarded as settled with us, no matter what the authorities elsewhere hold. Nothing in the two cases to which we have been referred is in conflict with this. In the first, Gehman v. Erdman, 105 Pa. 371, it was proved by the defendant that for twenty-one years prior to the bringing of the suit, the dam “had been maintained in precisely the same form, and to the same and no greater height; that the structure was identically the same in all respects, at the time when the suit was brought, as it had been at any time during the twenty-one years prior to that time;” and the same member of the court who wrote the opinion, in commenting upon it in the second case—McGeorge v. Hoffman, 133 Pa. 381—said there was nothing to rebut the proof that the dam had been maintained in precisely the same form for twenty-one years prior to the bringing of this suit, and further stated: “ It is certainly true that the presumption of a grant, arising from long continued user applies to the land occupied, and not to the dam, and the extent of the easement is measured by the extent to which the servient tenement is overflowed; but as long as the dam structure is of the same height, it may be assumed, in most cases at least, that the water is held to the same general level, and the extent of the land flooded from time to time is the same. The height of the water at what may be considered its ordinary level, as compared with known water marks, and the extent of land covered by the water at its ordinary stages from time to time, are proper evidence, of course, in this class of cases; but if it clearly appear that the dam-breast, through a period of twenty-one years prior to the time of the complaint, has been in fact unchanged, variations in the depth of the water, — 171 — during the continuance, after that, of the structure, at the same height, may be fairly attributed to the varying condition of the stream, or the evidence thereof to a difference of opinion as to what is the ordinary stage of the water. This is what we meant to say in Gehman v. Erdman, supra, and what was there said was applicable to the special facts of that case.” The injuries for which the appellee seeks compensation cannot, as a whole, be regarded as of a permanent character; for, if the appellant is guilty of the trespass charged against him, its continuance can be arrested after the appellee’s right to do so has been established in this proceeding. It is true, some of the injuries of which she complains—for instance, the destruction of trees—may entitle her to compensation upon the basis of a permanent loss; but the compensatory damages to which she may be entitled, in addition to compensation for property actually destroyed, are such as will enable her to restore her property to its former condition after the cause of the trouble has been remedied, and pay her for having been deprived of the use of it up to the time suit was brought. In this suit she cannot recover for any damages sustained after its institution, for no notice of her intention to do so was given, as required by the Act of May 2, 1876, P. L. 95, and the jury should have been so instructed. Under the instructions complained of in the eighth and ninth, assignments of error, the jury may have found that the injuries were permanent and allowed damages upon that basis; if so, and this judgment is not disturbed, hereafter, at the suit of the appellee, or some one else, the appellant may be compelled to make the wasteway in the present dam what it was in the old, and, under the restored condition, the waters will recede and remain at a level that will do no harm to the appellee. In that event, more than likely to happen if a jury in the present proceeding should find the appellant to be a trespasser, the appellee might have her property restored to her in its former condition, with damages for permanent injuries probably several times what she actually ought to receive. Upon the assumption that, if she was being injured by the defendant, the injury would not be permitted to continue permanently, the measure of damages should have been clearly laid dowm as being, in addition to the value of trees or shrubbery — 172 — actually destroyed, the cost of restoring her property to its condition before it was injured, unless such cost should equal or exceed its value, in which event the value would be the measure of damages, to which cost of restoration should be added the actual loss sustained by being deprived of the full use of her property from the time the injury was committed up to the institution of the suit: Lentz v. Carnegie Bros. & Co., 145 Pa. 612; Eshleman v. Martic Township, 152 Pa. 68; Harvey v. Susquehanna Coal Co., 201 Pa. 63. The question of defendant’s liability to punitive damages was submitted to the jury, and there was a finding of $3,000 for his wanton injury of plaintiff’s property. “ The justification of exemplary damages lies in the evil intent of the defendant ; and the allowance of such damages is, therefore, restricted to cases of wanton injury. There must be some wrong motive accompanying the wrongful act: ” 1 Sedgwick on Damages, sec. 363. Compensatory damages are proper where there is no actual malice, and are such as indemnify the plaintiff, including injury to the property. Vindictive damages may be given where there is actual malice, to punish the defendant: Barnett v. Reed, 51 Pa. 190. “ The general rule in cases for negligence is that only compensatory damages can be given. Juries are not at liberty to go farther than compensation, unless the injury was done wilfully or was the result of that reckless indifference to the rights of others which is equivalent to a violation of them. There must be wilful misconduct, or that entire want of care which would raise a presumption of conscious indifference to consequences: ” Lake Shore & Mich. Southern Ry. Co. v. Rosenzweig, 113 Pa. 519. “In torts that are committed through mistake, ignorance, or mere negligence, the ordinary rule is mere compensation; but in such as are committed wilfully, maliciously, or so negligently as to indicate a wanton disregard of the rights of others, the jury are not restricted to compensation merely: ” Pitts. C. & St. L. Ry. Co. v. Lyon, 123 Pa. 140. Applying the foregoing, out of the innumerable authorities upon the subject, to the testimony in this case, we can find nothing in it that would justify the submission of the question of exemplary damages to the jury. On the contrary, it seems to be conclusive that, when the appellant lowered the water, the inconvenience and annoyance to other riparian — 173 — owners and the menace to their health were so great that he would justly have incurred from them the charge of grossest indifference to their comfort and welfare if .he had not again raised the water; and nothing said or done by him indicates the slightest wantonness towards the appellee, or any intention to wrong her. The jury should not have been permitted to punish him. The sixth, seventh, eighth, tenth, eleventh and twelfth assignments are not sustained. They raise the question of the sufficiency of the proof of the title of appellee in the three-acre piece of land to the lake front, the contention of the appellant being that it does not extend so far, her deed calling for a point twenty feet from low water mark; and he produced a deed to himself for the intervening space of twenty feet. The whole question, however, was properly submitted in the answer to defendant’s sixth point, which was : “ I affirm their sixth point, and say to you by the undisputed evidence, plaintiff’s ownership of the ‘ three-acre ’ piece of land lying between the road and the lake extended at most only to line parallel with low water mark and twenty feet distant therefrom. But you must find where low water mark is and where that twenty-foot line was, as I have explained to you in the general charge.” As to the Perigo triangle, the hemlock tree, one of the monuments on the ground, being on the lake side of the public road, it was for the jury to say whether the quitclaim deed from Abel Perigo to James Lenahan passed title to the land claimed by the appellee. This suit is not in assumpsit on the agreement of May 4, 1897, but in trespass, for alleged wrongs of the defendant, committed as if the agreement had never been executed. True, the appellee could have sued the appellant on his broken covenant, but she was not bound to do so ánd not having done so, the agreement was properly admitted as an admission by the defendant that he had flooded her land. The thirteenth assignment is dismissed. The fourteenth, fifteenth, sixteenth, seventeenth, eighteenth, nineteenth, twentieth, twenty-first, twenty-second, and twenty-third assignments relate to admission of alleged incompetent testimony. All of the witnesses were qualified to testify except Dr. Julian Czupka. He was not acquainted with the properties in the vicinity and, of course, had no knowledge of their value; he gave no — 174 — satisfactory reason for his opinion, and did not show that it rested upon a substantial foundation. His opinion was a mere guess, and, under all of our authorities, the latest being Friday v. Penna. Railroad Co., 204 Pa. 405, he ought not to have been allowed to express it. The twenty-second assignment is sustained. In view of what we have said on the subject of punitive damages, the twenty-fourth assignment is also sustained. The only substantial errors committed on the trial were in the court’s instruction as to the measure of compensatory damages and in submitting the question of punitive damages to the jury. The judgment is reversed and a new trial awarded, that, on it, the errors we have pointed out may be avoided.