Humphrey v. Irvin

Opinion by Mr. Justice Sterrett: This action on the case was brought against the widow and heirs of John Irvin, deceased, defendants in error, to recover damages for injuries alleged to have been done to plaintiff’s land by their milldam. In the declaration it is averred that on July 30, 1875, and between that time and the bringing of this suit, the defendants wrongfully, injuriously, and unlawfully made, kept, and continued, and caused to be made, kept, and continued, a dam of great length, width, etc., across the river at a point about 3 miles below plaintiff’s land, more or less, by the course of said [277] river, and by reason of said dam, so made, kept and continued by defendants, tbe water of said stream during tbe time aforesaid was raised at divers times to a great height, viz.: the height of 10 feet upon plaintiffs said land, above what the waters of said stream would have been if left to flow freely in its natural channel, free from such artificial obstructions; whereby a large quantity of plaintiff’s land was overflowed, washed, and greatly damaged, and the fences and other improvements partly washed away, and in other respects greatly injured and destroyed, the rafting ground of plaintiff on said land greatly damaged, interfered with, and depreciated in value, and said plaintiff’s business of farming, lumbering, etc., so interfered with and injured that plaintiff was deprived of great profits, and subjected to large outlays, expenses, etc. The injuries thus complained of being in the nature of a continuing nuisance, plaintiff gave the requisite notice, and, under the act of May 2, 1816 (P. L. 95), claimed the right to prove and recover damages for maintenance of the alleged unlawful structure. He accordingly made the offer, the rejection of which forms the subject of complaint in the first specification. When we consider the old law, the mischief, and the remedy, it is very evident that the object of the act last referred to was to avoid multiplicity of suits, by giving the plaintiff in this class of cases the right to recover damages up to the day of trial. Formerly, damages of the kind complained of, suffered between the impetxation of the writ and time of trial, could only be recovered in a second suit. This was considered a defect in the law which the act was intended to remedy. It is a mistake to suppose the offer was to prove a new cause of action not existing when suit was brought. The cause of action then was, and still is, an unlawful interference with the natural flow of the water through plaintiff’s land, by means of a dam, theretofore maintained by the defendants. The offer was to prove that after suit brought they persisted in continuing, increasing, and strengthening the obstruction which constituted the alleged nuisance. We think, therefore, the plaintiff was entitled to give in evidence the condition of the dam and obstructions during the whole period of time, including all such additions, changes, and repairs as were made by defendants. It has also been suggested that, if there was technical error in [278] excluding the offer, plaintiff was not thereby prejudiced, because the result of the trial shows he had no cause of action at the time suit was brought, and he cannot be permitted to recover for a subsequently accruing cause of action. This position is more plausible than sound. It is predicated on the assumption that there was no error, in the course of the trial, which may have prevented recovery for a good cause of action existing when suit was brought. At least one such error, we think, was committed by the refusal of the court to affirm plaintiff’s third point. In that point the learned judge was requested to charge: “If said dam or obstructions maintained by defendants caused baek water on plaintiff’s land in any degree in the ordinary stages of -water or freshets which are to be anticipated, then such dam or obstructions would be illegal, and plaintiff would also be entitled to recover from defendants such damages as arose from sueh dam or obstructions in the extraordinary freshets that sometimes occur.” As applicable to the facts of the case, this is a correct statement of the law, and the proposition should have been affirmed. In Pastorius v. Fisher, 1 Rawle, 27, it is said: “In an action for overflowing plaintiff’s land by the erection of a dam on the land of the defendant, in which the nature and extent of the alleged injury are specially described in the declaration, the plaintiff is entitled to a verdict for nominal damages, though he fail to prove the particular injury complained of, or any other actual injury.” In delivering the opinion of the court in that case, Gibson, Ch. J., says: “The law implies damages for flooding the ground of another, though it be in the least possible degree and without actual prejudice. . . . But where the law implies the injury it also implies the lowest damages, except in cases of personal injury, where damages are given, not to compensate, but to punish. Here, however, it is said the plaintiff undertook to prove special damage, and therefore staked his case on the event. But surely an attempt to prove an injury beyond what the law implies is not necessarily a relinquishment of damages for every-thing short of the whole case. Where the plaintiff goes for special damage, he must lay it, else he should not give evidence of it. But the converse of the rule does not hold, — that having laid it, he must prove it or fail altogether. It would be neither reasonable nor just to compel him to elect between real and nom [279] inal damages, or to refuse compensation as far as a substantial cause of action lias been proved. The action may be brought to try the right, and the verdict, being conclusive, would stand in the way of a recovery for a substantial injury, if any were suffered afterwards.” In Casebeer v. Mowry, 55 Pa. 419, 93 Am. Dec. 766, the same principle is thus stated: “One man cannot with impunity invade the premises of another by a nuisance, because the damage may be inappreciable. The law allows the recovery of nominal damages, at least, as evidence of the plaintiff’s right.” In support of plaintiff’s proposition other cases may be cited, among which are: Alexander v. Kerr, 2 Rawle, 83, 19 Am. Dec. 616; Lehigh Bridge Co. v. Lehigh Coal & Nav. Co. 4 Rawle, 10, 26 Am. Dec. 111; Bell v. M’Clintock, 9 Watts, 119, 34 Am. Dec. 507. The last two cases are authority for the position that, where the loss happens exclusively from an act of Providence, the defendant is not liable; but where his negligence or fault concurs with "the act of Providence, he is answerable for damages. It follows from what has been said that the first and tenth specifications of error are sustained; and, so far as the remaining specifications are involved in either of these errors, they are also sustained. The remarks of the learned judge complained of in the third, ninth, and thirteenth specifications were calculated to create an erroneous impression in the minds of the jury; but standing alone they would not warrant reversal of the judgment. Judgment reversed and a venire facias de novo awarded.