Carpenter v. Lancaster ( 1905 )

Opinion by

Mb. Justice Bbown,

The contents of three sewers in the city of Lancaster are discharged into a stream of water flowing through the property of plaintiff, situated in the southeastern portion of the city. The first was built in 1892, the second in 1896, the third in 1900, and each in accordance with an ordinance directing its construction. More than 200 houses are connected with these sewers, the city receiving $25.00, for each connection. Through them the waste water, filth and discharges from water-closets in a large and growing section of the city are carried into the stream; and for its pollution, causing damage to her land, the plaintiff has brought this suit. From the testimony, it is clear that the city has made the stream an open part of its present sewer system, and the case was properly tried on that theory.

One of the complaints of the appellant in the argument in support of this appeal is that the court submitted the ease to the jury as if it were one of permanent injury. The instructions were that the measure of damages was “the difference between the market value of the property before the injury was committed and its market value after the injury was committed.” This has not been assigned as error, and it ought not to be, for the case was tried by the city, as well as by the plaintiff, as one of permanent injury to her property, if it was injured by the city in adopting the stream as a part of its sewer system. For the purpose of enabling the jury to determine what damages should be awarded, witnesses called by the plaintiff were asked and allowed to answer, without objection by counsel for the city, what, in their judgment, was the difference in the value of the property before and after the pollution of the stream by the discharge of the contents of the sewers into it; and so the city, in its defense, asked the same question. The first point submitted by the plaintiff was: “ The measure of damages in this case is the depreciation in the fair market value of Mrs. Sarah B. Carpenter’s property, caused by the draining of the sewers of the city of Lancaster into the run which flows over her premises a short distance below where said sewers enter the stream; provided the jury find that this constitutes a permanent injury to her property.” This was affirmed, and the court’s affirmance of the point is not assigned as error. In affirming it, Good v. Altoona, 162 Pa. 493, was followed, in which we approved instructions to the jury that, if the injury resulting from the pollution of a stream by the municipality’s sewer system was permanent, the landowner was to be compensated for the diminished value of his land. The city’s adoption of the stream as a part of its sewer system was prima facie a permanent adoption, and, if so, the injuries resulting therefrom were prima facie permanent. The burden was upon the city to show the contrary. It did not do so, but, on the trial, manifestly regarded the measure of damages, if any were sustained by the plaintiff, as being for permanent injury to her property. After a trial judge has submitted a question to a jury from the standpoint from which both parties to the issue manifestly have tried it, it is hardly consistent with good faith to the court that the one against whom the verdict is rendered should question the correctness of the submission. If it is ever to be questioned, it ought to be only in cases where manifest injustice results from it. Such is not the situation here.

It is contended by the appellant that at the time the city of Lancaster built its three sewers it did not have the right to appropriate private property as part of its sewer system. On the trial the court was of opinion that it had this right, and so charged the jury. This is regarded by counsel for the city as very serious error. If the city had possessed such right at the time it connected its covered sewers with the stream, and had injured the property of the plaintiff in the exercise of that right, the measure of any damages sustained by her would have been just the one fixed on the present trial. For permanent injuries sustained by her she is to receive the difference in the value of her property before and after the commission of the injury, whether caused in the exercise of the right of eminent domain or by a pure trespass: Thompson v. Citizens’ Traction Co., 181 Pa. 131. Earnestly as this alleged error has been pressed upon our attention, we need say no more in dismissing the assignment relating to it.

The carelessness and negligence of the city are not involved in this issue. The action was instituted because the city is using the stream as a sewer, and damages are not claimed for the careless or negligent use of it, but for injuries resulting from the mere use of it. This was the correct view of the trial judge in holding that, without regard to carelessness or negligence, the city was liable for such damages as were caused by its pollution of the stream, limiting its liability to what had resulted from its act. This appeared from the answer to defendant’s first, third and sixth points, and in the general charge it could not have been made plainer to the jury that the plaintiff could recover from the city only for such injuries as it had caused, when they were told, “ The plaintiff is only entitled, as I have said, to such damages as have reasonably been done by the act of the city.”

By the fifth, tenth and twelfth assignments attention is called to what counsel for appellant regards as erroneous views of the law in the opinion of the court discharging the rule for a new trial. These are novel assignments. With whatever views may appear in the opinion of the court we have nothing to do on this appeal. Views entertained below, to be considered and corrected here, if erroneous, are such as are expressed before the verdict is rendered, and not afterwards in passing upon reasons why it should be set aside. If the jury were properly directed, judgment on their verdict is not to be disturbed for any views subsequently entertained by the trial judge, even if erroneous. By this we are not to be understood as intimating that such views appear in the opinion in this case refusing a new trial.

This disposes of all the assignments except the ninth, which complains of the excessivehess of the verdict. This question was for the court below, and there is no reason why we .should interfere with its disposition of it.

The case having beén tried as one for permanent injuries, the statement of the plaintiff may be regarded as amended accordingly, and the judgment will be a bar to any future action against the city of Lancaster by the plaintiff, or her successors in title, for the pollution of the stream: Thompson v. Citizens’ Traction Co., supra.

Judgment affirmed.