Fessler v. Schuylkill Haven Gas & Water Co. , 1918 Pa. Super. LEXIS 391 ( 1918 )

Opinion by

Henderson, J.,

This action was for the recovery of damages for the diversion of a stream to the detriment of land owned by the plaintiff below the location at which the water was taken. The first four assignments relate to the instruction of the court on the subject of punitive damages. The defendant is a corporation having the right of eminent domain. It did not take the water in the exercise of that right but without notice to the plaintiff erected a dam from which, it conducted water through a pipe to a reservoir used by it in the distribution of water to the community which it served. It also erected a pump below the dam which was used for forcing into the dam water which leaked through it. The plaintiff contended that the action of the defendant was wanton and in wilful disregard of his rights as a riparian owner as a consequence of which he was entitled to punitive damages and the trial judge instructed the jury that it might award such damage as would not only compensate-the plaintiff but at the same time tend to prevent a repetition of the wrong either by the defendant or others. The instruction was apparently intended to be within the ruling in Rider v. York Haven Water & Power Co., 255 Pa. 196. We do not consider it necessary to discuss the question raised by the assignments in view of the fact that the verdict of the jury was' less than half the amount which could have been awarded as compensatory damages under the evidence. The verdict was $900. The injury complained of was committed in the spring of 1911. If the verdict included a lawful sum for the detention of the damages the amount allowed for the loss would be considerably less than the sum awarded the plaintiff. The witnesses called for the plaintiff put the actual damage at a much larger sum. Their testimony was credited rather than that of the defendant’s witnesses and it is evident, therefore, that the verdict does not include punitive damages. It would be an unprofitable exercise, therefore, to review the authorities and discuss the evidence on the question of the sufficiency of the proofs to warrant the submission of that question to the jury.

The fifth and sixth assignments may be considered together. They relate to the testimony of two of the plaintiff’s witnesses, Lambert Strauck and William Allison. The court was requested by the defendant to instruct the jury to disregard the testimony of each of these witnesses; the first because he gave what the learned counsel characterizes as a “conditional valuation,” and the second because he did not know what the property would bring at public or private sale and that he merely made a guess at its value. In considering the merits of these assignments all of the testimony of each of the witnesses named is to be taken into consideration. The examination of Strauck covers ten pages of the record. Numerous questions were propounded to him; some of them in a form which would have required two answers and some ■of them in language which was apparently not clearly understood by the witness. His qualification to testify on the subject was not questioned. He had lived in the immediate neighborhood for many years, had seen the property frequently and had knowledge of the values of real estate in the locality. In the protracted examination his answers were not always clear but he did testify as to the value of the property before and after the diversion of the water and' the weight of his evidence was a question for the consideration of the jury. The cause of the injury to the plaintiff was the loss of water power and when the witness estimated the value with the power connected with the land the jury could determine his meaning taking all of his testimony together more readily than can that be done by a review of the evidence; especially in the light of the observation which they had by a visit to the premises and an examination of the plaintiff’s property. The market value of land is a matter of opinion and is to be shown by evidence of those who are familiar with the neighborhood, the situation of the property, the buying and selling values of such property as may have been sold or the prices at which property is held by the owners. This opinion is a conjecture, however, and is only admissible because it is the best evidence available under the circumstances. Where the witness has shown himself qualified as did this witness to give an opinion on the subject his testimony is entitled to the consideration which the jury may deem it worthy. What has been said with reference to the testimony of Strauck applies with equal force to that of Allison. He had the necessary knowledge of the property and of prices in the locality to express an opinion. After examining the evidence of these witnesses we are una'ble to agree with the contention of the learned counsel for the appellant that it was not competent for the consideration of the jury.

In the seventh assignment the complaint is made that the court did not withdraw a juror because of improper remarks of the plaintiff’s counsel. We have examined the language set forth in the affidavit with care but are not convinced that it sustains the objection presented. The action involved the conduct of the defendant company. It proceeded concededly without right in taking the water from the stream. Lower riparian owners were not consulted. Their rights with respect to the water were not regarded. It was within the power of the defendant to have proceeded in accordance with law under its charter and thereby to have secured a title,to the water which it desired. It chose the other method. It therefore invited some, criticism of its action and while the disposition of the courts has been to restrain violent and inflammatory attacks by counsel on parties and witnesses without due regard to the evidence it has not been the intention to prescribe the exact terms in which the conduct of parties or witnesses should be characterized and thereby to confine within the narrowest limits the rhetorical liberty of counsel. On the undisputed facts in the case we are of the opinion the plaintiff’s counsel did not transgress the boundaries of lawful expression in asking the jury to render adequate compensation to the plaintiff for the wrong alleged to have been done him.

The assignments are overruled and the judgment affirmed.