Koch v. Williamsport Water Co. ( 1870 )

The opinion of the court was delivered, May 7th 1870, by

Thompson, C. J.

The peremptory direction of the learned judge below to the jury to find for' the defendant, was manifestly what the exigencies of the case demanded. There was a specific remedy provided in the act incorporating the company for the very matter for 'which the common law action was brought, namely, to recover compensation for an injury alleged to consist in the diversion of a stream of water to the prejudice of the plaintiff’s mill: see 8th sect. of the Act of 18th April 1853, Pamph. L. 724.

A statutory remedy must be pursued: Act of 21st March 1806. It applies in cases of the kind before us: Railroad Co. v. McLanahan, 9 P. F. Smith 28, and other cases.

The remedy is Reciprocal in this act.' Either party might put it in operation. It was no reason why the plaintiff below should not resort to it because the defendants did not before entry: Borough of Harrisburg v. Crangle, 3 W. & S. 460.

The 8th section of the act, as already said, covers the specific injury complained of by the plaintiff. It is necessarily consequential, but is directed to be paid. That it was not paid nor secured before possession taken or injury occurred is not a constitutional requirement: McKinney v. Monongahela Nav. Co., 2 Harris 65; and its non-payment does not change the remedy to enforce it. In this ease the remedy would cover the claim if otherwise good: Buckwalter v. Blackrock Bridge Co., 2 Wright 281. To that remedy the plaintiff below was bound to address himself. The case below was properly disposed of in the court below, and the judgment is affirmed.