Kester v. Main Township

Opinion by Orlady, J., The plaintiff claimed that the supervisors of the defendant township so negligently and carelessly changed the natural course of a stream of water and repaired a public highway crossing his lands, near to his dwelling house and gristmill, that the natural flow of water was interfered with, and diverted into his buildings, as to cause him damage and injury in the enjoyment of his property and seriously affect its market value. The defense was that the repairs to the road were necessary, and were made in a careful and proper manner, and further, that all injury to the plaintiff’s property was due to a 'defective construction and arrangement of his buildings and drains, which caused the natural seepage of water through the ground into the cellars of his mill and other buildings. Before any testimony was offered the jury viewed and inspected the premises, with one counsel of each side acting as a shower, and after an exhaustive trial a verdict was returned for the defendant. On the trial the plaintiff adduced proof tending to [368] show that the injuries were permanent in character, and in regard to this the issue was clearly defined in the examination of his witnesses, and to relieve it of doubt the court interrogated counsel when the plaintiff’s miller was on the stand, as follows: “Your contention is that this is a permanent injury and you are contending for the rule that the measure of damages is the difference between the value of the property before the filling up and the value after the filling,” to which counsel replied, “Yes.” This theory was adopted by the court and the jury instructed, viz.: “The question here is, was there a careless construction of that road, which caused more water to flow upon this property than before ,the construction?” The disputed facts were submitted to the jury in a lucid and fair charge. The measure of damages, when an injury to a building is of a permanent character is the cost of restoring the property to its former condition, together with compensation for the loss of its use: Helbling v. Allegheny Cemetery Co., 201 Pa. 171. And as stated in Gift v. Reading, 3 Pa. Super. Ct. 359, “When property is injured by negligent construction of a sewer by reason of the diversion of water caused thereby, the measure of compensation would be the cost of repairing the damages and thus restoring the property to its former condition, unless such cost would equal or exceed the value of the building, in which case the value of the building would be the measure of the plaintiff’s damages.” The defense in this case went to the primary and actual cause of the alleged damage, as well as to the character of the changes made in the public highway, under the law governing such public work, as announced in Edwards v. Williamsport, 36 Pa. Super. Ct. 43, and Metzgar v. Lycoming Township, 39 Pa. Super. Ct. 602. The case was carefully tried and the verdict is sustained by sufficient testimony to justify the court in refusing a new trial. The judgment is affirmed.