7 Pa. Super. 526 | Pa. Super. Ct. | 1898
Opinion by
It is conceded, and is too plain for argument, that the defendant borough had no right to divert the stream, to the injury of the lower riparian owners, for the purpose of supplying its inhabitants with water, without making or securing compensation to the persons injured: Haupt’s Appeal, 125 Pa. 211; Lord v. Water Co., 135 Pa. 122; Clark v. R. R. Co., 145 Pa. 438; R. R. Co. v. Water Co., 182 Pa. 418; Glass Co. v. Water Co., 5 Pa. Superior Ct. 563. There was ample evidence to warrant the jury in finding that the flow of water over and through the plaintiff’s land was sensibly diminished by reason of the erection of the defendant’s dam. The question was submitted to them under instructions, to which no exception has been taken, and, therefore, their verdict is to be construed as establishing the fact. It follows that the defendant was liable to action in vindication of the plaintiff's right; but not for the recovery of substantial damages unless actual injury was done Clark v. R. R. Co., supra.
The case, as presented here, turns upon the question of the measure of damages.
The court was asked to instruct the jury, that the evidence was too vague, uncertain and indefinite to sustain a verdict for actual damages. The refusal so to charge is the subject of the second assignment of error. But there was evidence that the plaintiff used the stream for watering his stock, and that before
The plaintiff offered to show, in addition, that within ten feet of the bed of the stream he has a spring, over which was erected a spring house, and which was useful and profitable to him by reason of the domestic uses which he made of it; that this spring was fed in part at least, if not wholly, by percolations from the stream; that by reason of the cutting off of the stream these percolations ceased, and the spring became dry for a greater portion of the year, in consequence of which he suffered damage. The overruling of the objections to this offer, and the refusal to charge that the evidence was insufficient to establish the facts recited in the offer and to warrant the jury in taking the diminished flow of the spring into consideration in estimating the plaintiff’s damages, are the subjects of the first and third assignments of error.
Wheatley v. Baugh, 25 Pa. 528, decided that where a spring depends for its supply upon percolations through the land of the owner above, and in the use of the land for mining or other lawful purposes the spring is destroyed, such owner is not liable for the damages thus done, unless the injury was occasioned by malice or negligence. Neither this case, nor any of those which follow it touch the precise question raised here. They relate to a lawful and nonnegligent use of his land by the owner, whereby the water which would naturally percolate through his soil and supply the spring or well of his neighbor, is prevented from doing so. This is damnum absque injuria, because to hold otherwise would deprive the. owner of the land from which the water percolated of the reasonable enjoyment of his own property. “No man could dig a cellar, or a well, or build a house on his own land, because these operations
Judgment affirmed.