Spigelmoyer v. Walter , 3 Watts & Serg. 540 ( 1842 )

The opinion of the Court was delivered by •

Sergeant, J.

The case of Criswell v. Clugh, (3 Watts 330), decides the point made in the defendants’ justification. It was there held, that the party must pursue the remedies pointed out by the Act of Assembly, and could not use the common law remedy of abatement. It is argued that this case is distinguishable, because the defence here is not put on the claim of a right to abate the dam entirely, but only to remove so much of the obstruction as to permit arks to pass, doing as little damage as possible. It is almost impossible for a person to cut away the logs of a ’dam, so as to obtain a passage through for an ark, without subjecting it to the danger of being soon swept away by the floods; and it is probable it was for this, among other reasons, the remedy was not left by the Legislature to the party injured, but to the view and adjudication of others. Besides, the common law right of abatement does not go to the entire destruction of the thing, but only to the removal of so much as is illegal. Dyer v. Dupui, (5 Whart. 597). So that in effect the case in 3 Watts decides this point, and no distinction exists between that case and the present. The party must pursue the course prescribed by the Act of Assembly.

2. We think the evidence objected to was admissible under the general averment of “ other harms” in the declaration. In an action of trespass for destroying a mill-dam, (not merely a dam which may be for other purposes), the stoppage of the mills supplied by its means with water-power, seems to fall within the description of such a damage as naturally or necessarily results from the act. The cases cited by the plaintiff show that these words have received a large construction, so as to embrace consequential injuries not specifically mentioned in the declaration, but ordinarily flowing from the act complained of. Under the usual averment of damages, called alia enormia, damages naturally arising from the act complained of, may be given in evidence, in aggravation, though not stated specially. 2 Saund. PI. &■ Ev. 865; B. N. P. 89.

Judgment affirmed.