Schuylkill Navigation Co. v. Freedley

[114] The opinion of the court was delivered by Huston, J. I have been so much struck by some things appearing in this case that I will mention them, though not the reason on which our decision must be made. In January, 1832, on proceedings to recover damages occasioned' by a former dam, the company paid $800, the sum at which the damages were appraised. No person has stated to what point at the complainants mill this dam raised the water. Either it was badly constructed or it was somehow injured, for it is in proof that it leaked in a year or two from one end to the other; and in 1834 or 1835 it sunk about the middle from eighteen inches to two feet; so that in 1836 it became necessary to build a new dam. Witnesses who saw it while it was leaking, or when sunk, tell us that the water was ten inches, or, as some say a foot, and others fourteen and fifteen inches below its. present height. Now as the company paid for all damages done by it when not leaking and not sunk, they are only liable for any damage done by raising the present dam higher than the former as it stood when first erected; and the old dam might have been repaired so as to be of an uniform height, and so as not to leak and no damage to Mr. Freedley—damages to that height had been paid for. This would have raised the water above where it stood in the dilapidated state of the dam, and would have brought it to within five inches of its present state; for the proof seems full, and certain, and indisputable, that the present dam is not five inches higher than the former one. And it seems to me strange that any weight should be allowed to conjectural opinions in opposition to actual measurement. It is not forgotten that in 1836 the winter crops in much of this state, and in some other states, failed in a manner, to occasion much distress, and to raise very much the price of wheat and rye: if not sworn to I would not have believed that the scarcity was so great as to enable a man to sell rye bran at a dollar per bushel. Mr. Freedley is stated to have purchased a quantity of rye from men in Huntingdon and Mifflin counties, at from $1,25 to $1,31 per bushel, and that in the spring of 1837 he was making great gain by selling rye meal at $2,00 per hundred pounds, and bran of rye as above stated: and the court say, “ It is alleged that at the particular time when the new dam was raised, he had on hand a quantity of rye, from the grinding and sale of which he would have made a certain sum, had the dam not been raised, but which he lost in consequence of the backing of the water on him: if the jury are satisfied of the fact, they should compensate the plaintiff for the loss thus sustained.” This part of the opinion is alleged to be error, and we think not without cause. Without recollecting that unless ruinous dams are repaired, the produce of Hollidaysburg and Miffilin will not come to this market; for the land carriage will be equal to the price; and without noticing [115] that if the dam, and during 1837 the coffer-dam, had not been there, Mr. Freedley could not have sent his meal to market by the canal below; there are other considerations which forbid the allowance for the item of damages here claimed and allowed. Whatever is a great benefit to a large portion of the community, results, though not so immediately, in a benefit to the whole community; and if in the attainment of this general good, some little inconvenience is sustained by some persons, this is not the subject of action, nor does it entitle to damages. Houses are burnt down, or fall down, or become ruinous, and are to be rebuilt. The stone, and brick, and lime, and mortar, and the carriages, and drays, and workmen, occasion considerable obstruction in the street, and some annoyances to those living adjacent, yet it would not do to subject the owner to a suit because some one had purchased a fresh supply of goods, and alleged that men, and especially ladies, would not come to buy, and therefore he had lost the profits he expected. The loss alleged is the profits on a speculation in rye ; but the company are not liable for such losses. Mr. Freedley knew they had begun to rebuild the dam, and were bound by their duty to the stockholders and to the community to go on and complete it. Neither the objects for which the company were incorporated, nor their duty, nor common sense, required that all the navigation should continue interrupted and suspended because one person had made a speculation in grain. It was long ago settled in this court that the company were not liable for speculative damages, or profits which any person supposes he might have made if no canal had been constructed. Commonwealth v. Thoburn, (7 Serg. & Rawle, 411.) On the principle adopted in this case, suits might be brought, if the navigation was at any time interrupted, and men would allege that produce fell, and so they sustained loss; and' this loss would depend on the state of the market. But this is not all. There would be no means of ascertaining the amount of the loss, or the real cause of it. I know one man who would not sell his wheat that year because he could not get more than two dollars a bushel for it; and next year be got one dollar. Mr. Freedley’s profits ceased, in part at least, about the first of July, when rye and wheat ripened; and yet his witnesses, and I am afraid the jury, carried it on to December. The matter, and the only matter to be decided, is, what was the real damage to that mill in ordinary events by raising the water as it was raised by that dam; and not how much of Mr. Freedley’s profits, from an accidental rise in the price of rye, accrued at that time. And, in order to ascertain this, the jury must ascertain how much it was raised. If only raised five inches or less, there is an end of calculations about loosing a foot or fifteen inches. His mill is an overshot; he uses the same wheel, and although it [116] is wholly raised seven inches, yet the water comes into the top buckets as it did before. He had then lost no power; for only ignox'ant people talk about water in a breast or overshot producing airy effect except by its weight. As to the request by Fx'eedley to the contractor to raise the dam; I think the matter requires a more precise statement. Was the dam by the dix'ections of the company to be" raised to a certain height 1 Was it raised above that height ? and if so, did the contractor add to its height at the request of Mx\ Freedley ? If so, is the coxxxpaxxy liable although the contractor never told them of Freedley’s request, or that he had complied with it I If built according to the plaxx of the engineer, and the directions of the company, it seems xxot materialwhat Mr. Freedley wished or said; but if it was raised iix consequence of his request, it would seem not material whether it was so raised by the contractor with or without the directioix of the company. Judgment reversed and venire de novo awarded,