Hays v. Hinkleman , 1871 Pa. LEXIS 204 ( 1871 )

The opinion of the court was delivered,

by Read, J.

This case turns almost if not entirely upon a question of fact, which the jury have determined in favor of the plaintiff. The water from the defendant’s land ran over into the plaintiff’s land in a torrent, which tore a deep gulley in plaintiff’s field, destroyed a valuable spring of fresh water near his house, injured the foundations of his house, washed away a quantity of manure from his barn-yard, spoiled his stock of hay in his stable, uprooted two apple trees, besides washing gravel into his barn-yard and over his meadow. It was not denied that the damage done was serious.

There was a basin or winter spring in defendant’s field in which a large quantity of water is collected from the snow and rain, and for some time each spring it flows in a very considerable stream, the natural course of which is into a hollow or ravine, or what is known as Hays’s run, and is carried off through Hays’s land to Lycoming creek. The courses of this drainage are all on Hays’s land, and prior to 1866 all this water was drained in that way alone. In 1865; what is called a ditch by the plaintiff, and a furrow by defendant, was made by the defendant to a point beyond the summits of the intervening ridge at the western side of Hays’s field so as to carry water from the basin to the declivity above the land of the plaintiff, and in 1866, the water took this new channel for the first time, and caused the damage above stated. The finding of the jury has settled that this was a ditch dug by the defendant, which turned the water from its natural course and threw it on the land of the plaintiff.

The charge of the learned judge is not complained of, nor was it reduced to writing, and the errors assigned are to the answers to certain of the defendant’s points.

The addition to the affirmative answer was necessary to the 1st point in view of the actual facts of the case as stated above, and the same is true of the addition to the answer to the 2d point.

The 4th point was properly negatived, as it asked the court to say, If part of the damage was occasioned by other waters collected by the ditch the verdict should be for the defendant, — which would have been a palpable error.

So the answer to the 5th point was properly qualified by adding to the point, If the jury believe that the defendant did not contribute to the damage by diversion of the natural flow of the drainage from the defendant’s field.

Seeing no error,

The judgment is affirmed.