Citation Numbers: 80 Pa. 59
Judges: Asnew, Gordon, Mercur, Paxson, Sharswood, Williams, Woodward
Filed Date: 11/8/1875
Status: Precedential
Modified Date: 2/17/2022
Mr. Justice Gordon delivered the opinion of the court,
It is unnecessary for us to review the opinion of the learned judge below, on the reserved points involving the constitutionality of the Act of 28th of March 1871 (Purd. Dig. 1268), as that opinion, as we view the matter, in nowise affects the case. The damage complained of by the plaintiff below arose from the unlawful use by the defendants of their dam, which, it was conceded, was erected for a lawful purpose. None of the plaintiff’s land was taken or used by the defendants. Their improvements were upon territory to which the plaintiff had no claim; nor is it alleged that they assumed a permanent control of that part of Chest creek flowing over his land. Had they so done, a very different question would have been raised. The complaint of the plaintiff was that the defendants so used their dam as sometimes to cut off the water from his mill, at other times to flood out his wheels, and that, upon one occasion, they precipitated so great a mass of water and logs upon his improvements as seriously to injure them by sweeping away a large part of his dam. If this were so, and the jury have so found, they were acting extra the Act of Assembly, and could not justify themselves under its provisions.
The act gave them no authority to erect or maintain splash dams, and had it conferred such power, they were bound so to use
The learned judge instructed the jury, that the defendants had the right to use the water of the creek in a reasonable manner, so as neither to deprive the plaintiff of the use of it, nor to damage his lawful structures: holding them responsible only for the negligence and improper exercise of their rights.
In this there is nothing which merits our disapproval, for, by all authority, the case was well put to the jury: Hetrich v. Deachler, 6 Barr 32.
As to the question of jurisdiction, that is settled by the fact that not only is part of the tract of land, on which the plaintiff’s mill is built, in the county of Cambria, but so also is the pond or water basin which is a necessary adjunct or appertenance to the mill. This then being a “single tenement” lying in both Clearfield and Cambria counties, the case falls within the 80th sect, of the Act of June 13th 1836, and was therefore well brought in the latter county.
The judgment is affirmed.