4 Watts 437 | Pa. | 1835
The opinion of the Court was delivered by
--This is an action on the case, to recover damages for an injury sustained by the plaintiff by the erection of a mill-dam on the Conewango river. It is averred in the declaration that the dam so obstructs the navigation of the stream, and changes the natural flow of its water, that certain mounds and bars are thrown up and created, by which the natural channel is obstructed, See. On the trial a variety of evidence was given, which it is immaterial particularly to recapitulate. It is assumed in the charge that the plaintiff suffered great damage by the rafts striking and jamming on the bars, a short distance below the defendant’s mill-dam. There was proof also that the bars were caused by the dam.
The court among other things charged the jury that they should-be satisfied with reasonable certainty that the injury sustained was caused by the wrong construction of the dam. That the act of assembly authorising the erection of dams on streams declared to be public highways, does not require that those building such dams should keep the stream navigable below, provided they are erected in a proper and judicious manner. The cause was made to turnon the point, whether the dam was scientifically erected, or otherwise ; for if it was, the jury was instructed that if they should believe that such bars are the necessary and inevitable effect of such erections, the plaintiff could not recover. As the act authorises the erection of dams, say the court, and every dam must necessarily cause a bar below, the defendants are not liable, unless for the misconstruction of their dam. The above abstract contains the substance of the charge, and of this the plaintiff complains.
The act to which the court refers, is the act of the 23d of March 1803, entitled “an act to authorise any person or persons owning lands
The first section declares that all and every person owning lands adjoining any navigable stream of water declared by law a public highway, except the rivers Delaware, Lehigh and Schuylkill, are hereby authorised to erect a dam or dams, for a mill or mills, or other water works, upon any such stream of water adjoining their own lands, and to keep the same in good repair, and also to lead off thereby, on his or their own land, so .much of the water of such stream as may be necessary for his or their mill or mills, or other water; provided, that the said person or persons, his or their heirs and assigns, in erecting the said dam or dams, or keeping them in repair, shall not obstruct or impede the navigation of such stream, or prevent the fish from passing up the same. The second section directs the manner of proceeding, on complaint made that a dam obstructs the navigation or impedes the progress of fish; and the third and last section gives a remedy to the owner or owners of any raft, boat, or other vessel, &c. obstructed, suffering damage, or being delayed on their passage, &c. on said streams, or highways, &c., with the proviso that the damage so to be recovered does not exceed the sum of fifty dollars ; but if damages shall be alleged to a greater amount than fifty dollars, the same may be sued for and recovered in the court of common pleas of the county where the said damages shall have been sustained.
The plaintiff alleges in his declaration that he has sustained damages to the amount of 20.00 dollars, and for this injury he has brought suit, in accordance with the clause of the act above recited, in the court of common pleas of Warren county, where the damages were sustained.
The correctness of the charge depends on the construction of the first section of the act, and particularly the proviso.
It cannot be denied that the legislature have full and plenary authority on the subject matter to .regulate the navigation, and prescribe the mode and manner of using the bed of the river; and that the erection of a mill-dam on the streams declared to be public highways without their license, would be a public nuisance. Assuming this jurisdiction, and believing that such erections would be a public benefit, the legislature have granted the privilege to owners to erect dams for mills or other water works adjoining their own lands, with the necessary restriction, however, that the same be done in such a manner as not to interfere with a much more important public interest,namely, the free and uninterrupted navigation of the stream, or with the private rights of other owners. The rights, which are common to all the citizens of this state and of an adjoining state, have been guarded with the utmost solicitude, and even in language which, it appears to me, it would be difficult to make more precise and clear. Dams are authorized to be built only on the condition that they do not obstruct and impede the navigation of the stream, or prevent the passage of fish. It is the basis of the charge that
It has been before shown that the legislature cannot justly be charged with a want of attention to the interest of the public. It is plain that no authority to build dams of this description would have been granted if it could have been foreseen that the effects would have been produced which this case exhibits; or, if such consequences had been predicted, it is altogether probable it would have been made the express duty of the owner immediately to have removed the impediments. The impossibility of divining all the consequences was, no doubt, the reason which induced the legislature to couch the proviso in such general terms, which well may have
Judgment reversed, and a venire de novo awarded.