Riddle v. Delaware County

Opinion by

Mr. Chief Justice Stebbett,

Two suits were brought against the county defendant to recover damages for injury done to a certain mill property, formerly owned by Samuel Riddle, and, after his decease, by his two sons Samuel and Leander. Said injury is alleged to have been caused by the erection of a county bridge over Chester creek, whereby the channel of that stream was obstructed and the waters thereof so backed up, during freshets, that the mills, and surrounding lands appurtenant thereto, were flooded and said mill property greatly damaged and depreciated in value. The first of these suits was brought by the executors of Samuel Riddle, who died February 19,1888, and the second by his said sons, devisees under his will. The court held that no action could be maintained by said devisees, because the injury, if any, having been done in the lifetime of their devisor, was permanent and the consequent depreciation of value, if any, had taken place before they acquired title. A verdict for the defendant in that case was accordingly directed, and in the other, now before us on this appeal, the entire subject of damages was adjudicated.

The facts, necessary to a proper understanding of the case, are so fully and accurately presented, in the learned judge’s charge and answers to points, that extended reference to them is now unnecessary. The subjects of complaint in the first ten specifications of error, are to admission and rejection of testimony. The remaining eleven specifications are to alleged errors in the learned judge’s charge and answers to points submitted by counsel.

When the appeal of the present defendant from decree enjoining the erection of said new bridge, etc., was before us, Mr. Chief Justice Paxson, in the opinion reversing said decree, said: “ It needs no authority to show that the county commissioners cannot be controlled, in their discretion in building a county bridge, on the application of a private citizen. This cannot be done either in the size of the bridge, its plan, the location of its piers or abutments. The master finds that this bridge is located wholly on the old roadbed and within its lines. It does not touch the land of the complainant. If it causes injury to the latter by interfering with his water rights, he has his remedy by an action on the case: ” Delaware County’s Appeal, 119 Pa. 159. Recognizing that case as definitively settling the legal relation of the county to their testator, the executors brought this action on the case, and the trial proceeded for the recovery of damages, not for the wrongful or improper erection of the bridge, but for the injury sustained by reason of its interference with his water rights. Their claim is based upon the settled principle that the measure of damages is the difference in value of the mill property before and after the erection of the bridge. With special reference to this, we have considered the first ten specifications, the last of which relates to the exclusion of defendant’s offer to prove the matters therein stated, and the others to the admission of plaintiffs’ several offers, and are not satisfied that there is any substantial error in either of them.

The only doubt we have, as to any of them, is in regard to the relevancy of the question recited in the fourth specification. At first sight, that would appear to be irrelevant, but when considered in connection with the general scope of Mr. Davis’s testimony, including his answer to the question complained of, we think it is neither, incompetent nor irrelevant. The substance of his testimony on that subject is that, in time of freshets, the abutment etc. of the bridge seriously obstructs the ventage of the water, and thus interferes with the plaintiffs’ water rights.

In that portion of his charge recited in the eleventh specification, we think the learned judge rightly instructed the jury that if, under the circumstances, a larger span would have obviated the damming up and flooding, then the plaintiffs are entitled to recover, for the injuries sustained, because Mr. Riddle had a perfect right to raise his dam breast and erect his wall and mill where he did, and as it was all completed before the bridge was commenced it was the duty of the commissioners in. building the bridge to provide for the then existing conditions.

There was no .error in affirming plaintiffs’ sixth and eleventh points, nor in the answer to their ninth point. In the latter the learned judge said: “If the commissioners in the construction of the bridge have failed or neglected to provide for the free flow of the waters of the stream in times of the usual or-ordinary freshets to which it is subject, and damage has resulted to the plaintiffs by reason of such failure or neglect, the defendant is liable in damages for the injury done.”

There was no error in refusing to affirm defendant’s third point; nor in the court’s answers to either its fourth, fifth or sixth points. The ground of estoppel set up in the last of these points is wholly untenable : Perry v. City of Worcester, 72 Mass. 544.

The defendant was not entitled to an affirm anee of its eighth point, or to an unqualified affirmance of its ninth point. The case is not one in whifch the general rule as to contributory negligence can be invoked to defeat a recovery.

The case depended on questions of fact which were clearly for the jury, and we are not satisfied that, in submitting it to them, the learned judge committed any error, either of law or fact, of which the defendant has just reason to complain.

Judgment affirmed.