Trimmer v. Berkheimer

Opinion by Henderson, J., The plaintiff and defendant were the owners of contiguous lots in the Borough of York. They were at variance in regard to the location of their division line. The trespasses alleged grew out of the defendant’s assertion that the roof of the building on the plaintiff’s land at the rear of the lot overhung his lot and discharged water in large quantities thereon. The acts charged against the defendant in the statement of claim are: (1) that he removed spouting from the plaintiff’s building; (2) that he closed four of the windows on the side of the building next to his lot by nailing boards across them; (3) that he caused rain water to flow onto the plaintiff’s lot by removing a board from the plaintiff’s building, thereby permitting the water to flow onto the plaintiff’s premises; (4) that he broke windows in the plaintiff’s building; (5) that he pushed down a partly constructed brick wall along the.line of the plaintiff’s lot. These trespasses are charged to have been committed at different times between September 11, 1912, and April 21, 1913. The defendant claimed that the plaintiff’s eave-spouting was on his premises and that it constituted a nuisance in discharging water from the roof of the plaintiff’s building onto his lot, and evidence was offered to support that allegation in justification of his conduct in removing the spouting. The first and second assignments of error relate to the charge of the court and the answer to the defendant’s fourth point bearing on the — 275 — right of the defendant to tear off the eavespouting under the circumstances claimed by him. After citing the evidence offered by the plaintiff as to the taking away of the spouting the court said in the charge: “Nor has it been shown to you that the building was anywhere else than in her inclosure or on the land of the plaintiff. But the defendant seeks to justify' his action in tearing the spouting off, as was described to you by the witnesses, by saying that it was a nuisance. It is but proper for me to say to you that the law provides an ample means for the abatement of a nuisance; and it is the duty of all citizens before they take the law in their own hands to avail themselves of those remedies which legislation has given to them, and not to invade the rights, either personal or real, of other persons, except in extreme measures.” In the use of the language contained in the first part of the quotation the court evidently had reference to the walls of the building, for there was evidence from which it might have been concluded that the eave of the plaintiff’s building projected over the line of her lot and that.the spouting on the building was on the defendant’s property. It was not contended by the latter that the foundation of the building encroached on his premises but that the roof and spouting projected, as a consequence of which projection the water from the roof of the building was cast onto his lot. It was on this state of facts as contended for by him and on the advice of his counsel that he removed the spouting, and this act he defended on the ground that a nuisance may be abated by anyone whose property is injured thereby. The right of a person to abate a private nuisance injurious to his property on his own motion without resorting to legal proceedings if that may be done without a breach of the peace cannot be doubted. Text-book authorities and decisions of the courts furnish abundant support to this proposition. Among the cases in our own State are Dyer v. Depui, 5 Whar. 584; Rhea v. Forsyth, 37 Pa. 503. It will not be disputed — 276 — that an overhanging roof with spouting attached thereto which discharges water onto the land of an adjoining owner is a nuisance: 3 Blackstone Com., pp. 216-217. The jury was not instructed in regard to this feature of the defense, but on the contrary the clear import of the foregoing excerpt is that a private nuisance may not be abated by one injured thereby; that he is bound to' resort to the law for redress of the injury. The authorities referred to and many others which might be cited make it clear that it is not necessary in all cases to resort to an action at law or a proceeding in equity to remove a nuisance; that this may be done by the party aggrieved. He takes the risk, of course, of being able to show that a nuisance exists as a matter of fact. If he is mistaken on this point he is liable to damages, but where he is justified by the circumstances he may act on his own motion in a peaceable manner. In the offers contained in the third and fourth assignments the defendant sought to show that the plaintiff drained the water from the roofs of her buildings onto his land; that he complained to her; that she took no effective means of preventing the water from so running; that the removal of the bottom board of the plaintiff’s shop of which the plaintiff complained afforded the most practicable means of disposing of this water and the one which did the least injury to the plaintiff. That an owner has no right to accumulate and carry the water from the roofs of his house onto the lot of an adjoining owner is clear: Gould v. McKenna, 86 Pa. 297; Rielly v. Stevenson, 222 Pa. 252. If water was so turned onto the defendant’s lot the plaintiff could not object if the injury was obviated in a manner most practicable and doing the least injury to her. The defendant had the right to introduce evidence to support his allegation that the water from the buildings was unlawfully discharged onto his lot and that he adopted the means most available and least prejudicial to the plaintiff in turning it back onto her premises. — 277 — In connection with the plaintiff’s evidence showing that the defendant nailed boards across the windows on the wall of her buildings next to his lot evidence was admitted to prove the cost of skylights which the plaintiff put in the roof of the building made necessary as she claimed by the defendant’s interference with the windows, and also the amount of a reduction in rent which she allowed her tenant, who occupied the premises, because of his complaint that the light was obstructed by the defendant’s action. The measure of damages for a trespass of a temporary nature is the cost of restoring the property to its former condition' unless such cost would exceed the value of the property in which latter case the value is the measure of damages: Lucot v. Rodgers, 159 Pa. 58; Chase v. Clearfield Lumber Co., 209 Pa. 422; Hershey v. Kerbaugh, 242 Pa. 227; Williver v. Penna. Canal Co., 23 Pa. Superior Ct. 79. Actual compensation for the injury is the result aimed at. In this case the light was excluded by boards nailed across the windows. What the owner did was not to re'move the boards but to adopt a new plan of lighting the building involving the cost of constructing skylights. This was not restoration to the former condition. The cost of the skylights is not the proper measure of damages for the injury complained of. If the defendant had locked the door of the premises and carried away the key it would hardly be contended that the owner could construct a nevr door at a price fixed by himself and charge the trespasser with the cost thereof. No more could he adopt the plan resorted to in this case and charge the expense to the defendant. The injury to the tenant’s enjoyment of the property did not create a right in the landlord. Nothing in the case shows any liability of the latter to the tenant for the wrongful act of a third person. Generally speaking, the implied covenant of quiet enjoyment in a lease only covers the conduct of the lessor or those holding title paramount: Barnes v. Wilson, 116 Pa. 303; Dobbins v. Brown, 12 Pa. 75; — 278 — Moore v. Weber, 71 Pa. 429. Whatever loss the tenant sustained was an injury personal to himself for which he had a right of action, but no liability of his landlord to him resulted from the defendant’s conduct. In any event the defendant could not be fixed for a tenant’s loss without an inquiry into, and determination of, the amount of such loss. •The claim for damages for throwing down the brick, wall built by the plaintiff was withdrawn by the court from the consideration of the jury on the ground that there was a dispute as to the ownership of the land on which the wall was located and the plaintiff’s title had not been established. The wall was broken down on April 21, 1913. All of the other trespasses set forth in the declaration occurred a considerable time before that. The controversy about the Avail having been taken out of the case the evidence with reference thereto had no retrospective effect and was not admissible for the purpose of establishing either compensation or punitive damages. The evidence included in the ninth assignment could have no bearing on the case except as applied to the brick wall and was not relevant- on that subject inasmuch as the whole controversy about the wall was eliminated. The plaintiff could not recover compensatory damages under the ruling of the court and of course could not recover exemplary damages as to that branch of the case. The effect of this evidence under the charge of the court would be to aggravate the defendant’s conduct and influence the jury in estimating the exemplary damage to which the plaintiff might be entitled. As the plaintiff had not established her right to locate the wall on the ground where it was built it was a matter of no consequence whether the defendant threatened to tear it down again if it were rebuilt. It must first be made to appear that she had a right to build before the defendant could be censured for objecting to it. He claimed to own the land and if so had a right to remove the wall if that could be done without a breach of the peace. The — 279 — defendant may have been in a very unneighborly state of mind, but that has no bearing on the case if he were not acting in violation of the plaintiff’s right. If he committed a wrong his motives and feelings would be important to show aggravation and malice, but the wrongful conduct must first be made to appear: Jenkins v. Fowler, 24 Pa. 308; Smith v. Johnson, 76 Pa. 191. The defendant’s conduct may have been vexatious to the plaintiff, but any injury which she may have sustained must be proved by competent evidence and in harmony with the legal principles applicable to the facts established at the trial. We think the learned trial judge was in error in the respects considered in this opinion. The judgment is therefore reversed with a venire facias de novo.