James v. West Chester Borough , 220 Pa. 490 ( 1908 )

Opinion by

Mr. Justice Potter,

This was an appeal from the report of viewers appointed to assess damages sustained by plaintiff through the appropriation of the waters of Chester creek by the defendant for the purpose of improving and enlarging its water supply. The proceedings were instituted in Chester county, but under a change of venue to Montgomery county, the issue framed under the appeal was there tried, resulting in a verdict in favor of plaintiff for $2,800, upon which judgment was entered. Plaintiff has appealed.

It appears from the evidence that in the year 1854, the borough of West Chester obtained title bi condemnation to a piece of land at Fern Hill on Chester creek, and erected there a pumping station on the banks of the stream. It has continued the use of this plant and has drawn water from Chester creek at this point from that time until the present. In the year 1897, the borough authorities purchased a mill and water power located at Milltown on Chester creek several miles below Fern Hill, and erected there a pumping station and reservoir, and since then have pumped water from time to time from the stream at that point to the reservoir near Fern Hill, from whence the water is distributed to the town.

The plaintiff, John W. James, is the owner of a tract of about eighty acres of land situated on Chester creek, below' both of the pumping stations of the borough of West Chester. Upon his land are located two mills on opposite banks of the stream, one a flour mill, and the other a feed and sawmill. He acquired title to the property in 1889, and shortly after-wards sold a one-half interest therein, which was conveyed back to him in 1895. Since that time he has continued to hold title to the entire tract of land, and has operated the mills. The plaintiff did not allege any impairment of his water supply prior to 1895, and it appears from the evidence that the years 1895 and 1896 were seasons of unusually low rainfall. But since 1897, when the Milltown pumping station was erected, its operation has resulted in an impairment of the plaintiff’s water power.

The proceedings in this case were under the provisions of the Act of May 25, 1887, P. L. 267. The actual taking of the water at Milltown began in 1897. Ho bond was filed and no formal appropriation was made until August 31, 1899, when the original resolution was adopted by the borough council appropriating the entire stream. On October 19,1900, a supplemental resolution was adopted, which modified the prior resolution in respect to the amount of water to be taken from Chester creek and limited the amount, so that it should not exceed 1,250,000 gallons in any day of twenty-four hours. The plaintiff’s right to recover damages, however, rests upon the actual taking in 1897, and not upon either the original or the supplemental resolution of appropriation. It was not shown, however, that at any time more than 1,250,000 gallons per day were actually taken.

The petition for the appointment of viewers in the present case was not filed until August 28, 1905, nearly five years after the adoption of the supplemental resolution. If there was any restriction placed upon the appropriation of water, it was proper to consider it, in assessing the damages. This principle is inferential^ recognized in Miller v. Water Company, 148 Pa. 429 ; and it is very clearly stated in Lee v. Water Company, 176 Pa. 223. In that case the water company limited its appropriation of water to 2,000,000 gallons each day, and Justice Williams said (p. 227): “ The attention of the jury should have been drawn strictly to the question, how much has this property been reduced in value by reason of the appropriation and withdrawal from the stream of the 2,000,000 gallons of water? Anything tending to obscure, or divert attention from, this well settled measure, of damages should have been avoided.”

In the present case, as the second resolution limited the right of the defendant to 1,250,000 gallons daily, and the charge of the court limited the damages to the withdrawal of that amount, the ruling was squarely within the principle laid down in Lee v. Water Co., 176 Pa. 223.

Counsel for appellant complains of the trial judge for confining the jury in the assessment of damages, to the taking of the water at Militown, and excluding the taking at Fern ITill. We think the trial judge was clearly right in so doing. The taking at Fern ITill was before appellant had any title to the property in question. It is settled in Pennsylvania, as stated in the opinion in Losch’s Appeal, 109 Pa. 72, that “ damages being in the nature of a trespass for injury done to the land, do not pass by a subsequent conveyance thereof. The damages were a personal claim of the owner when the injury occurred. They do not run with the land nor pass by the deed, although not specifically reserved.” To the same effect are Warrell v. Wheeling, etc., R. R., 130 Pa. 600 ; Tenbrooke v. Jahke, 77 Pa. 392 ; McFadden v. Johnson, 72 Pa. 335. In Hannum v. Borough of West Chester, 63 Pa. 475, Justice Sharswood said that under the special acts of 1838 and 1839, authorizing the borough of West Chester to procure a supply of water, there “ should be but one proceeding; the judgment in which should be in effect a transfer to the borough of all his right to the waters of the creek, which might be needed for the purposes in contemplation.”

It is clear, therefore, that, under the application of this principle, appellant had no right to recover for any damages at Fern Hill, as the appropriation there occurred long before his tittle was acquired.

In addition we might add, that there seems to be no evidence to show any damage to his water supply from any talcing at Fern Hill.

The rule is apparently well established that damages occasioned by the taking of water to supply a city, are to be estimated as of the time of the taking, and are to include the amount of water, the right to divert which is taken, irrespective of the amount actually diverted : Gould on Waters (3d ed.), p. 495. In his twelfth assignment of error, appellant complains of the affirmance of defendant’s thirteenth point for charge, by which the jury were instructed that plaintiff would not be entitled to have his damages increased because of delay in settlement, “ if the jury find his demand was so exorbitant and unreasonable as to make payment of his reasonable damages impossible.” No fault can be found with this instruction as a sound proposition of law. The evidence showed that in the action of trespass brought in 1904 by appellant against the defendant, he laid his damages at the sum of $20,000, and in the testimony in the present case the same amount is claimed. The jury found the actual damages to have been $2,800. Such a discrepancy might well be deemed sufficient to warrant the jury in refusing to allow any additional sum for the delay in making settlement.

The assignments of error are overruled and the judgment is affirmed.