Craig v. Borough of Shippensburg

11 Pa. Super. 490 | Pa. Super. Ct. | 1899

Opihioh by

Smith, J.,

This suit was brought by the plaintiff to recover damages of the defendant for diverting water from a stream which flows through the land of both parties, as well as the intervening lands of others. The defendant holds the upper land by lease and constructed a dam on it, from which the water is carried to the borough of Shippensburg through a pipe, also maintained by the defendant. The plaintiff complains that the water thus diverted and piped is more than a riparian owner has a right to ■remove, and that by reason of such diversion the stream is exhausted .below, that at certain seasons no water can be found in the bed of the stream over his premises, and he complains that by reason of this deprivation of water he has been damaged by the defendant. It is conceded that both parties have riparian rights in the stream and the diversion of the water by pipe is also admitted. The controversy is over the extent and the duration of the alleged injurious diversion and the nature and amount of the plaintiff’s damages. The elements of damage seem to have been confined mainly to the live stock, due to “ the . shrinkage of the pasture incident to the drying up of the stream.” ' This necessarily involved the consideration of the condition of the meadows affected, before and after the alleged diversion of the water by the defendant, and the manner and extent of the damage by reason of the coftdition of the cattle, their losing in value, the diminution of milk in quantity and quality, and whatever extra labor was placed on the plaintiff by reason of the diversion, in order to compensate him for the injury thus caused. Several witnesses were called touching these points and the whole question was submitted to the jury under the evidence offered on both sides. The jury were not permitted to give damages for any permanent injury to the property, they were instructed to exclude this from their consideration and to consider only the actual damages the plaintiff suffered to his property during the period sued for. A verdict was rendered for the plaintiff, which, after argument, was reduced more than one third, whereupon judgment was entered and this appeal was taken. There is no just ground assigned for this appeal, and so far as we can see the record affords no sound reason for it. The first specification clearly refers to the crop of growing grass and not to “growing crops ” of cereals or emblements, in the legal sense. In the sense in which the court used the term growing crop it was perfectly correct and, in connection with the other parts of the charge, must have been correctly understood by the jury. While it is true, as argued by the appellant, that the plaintiff did not claim damage for “the loss of way-going crops ” meaning thereby cereals and such vegetable chattels as are known as emblements, a claim was made for damage to growing grass and its drying up, and, under the evidence, the court was right in submitting that to the jury.

There was but one request for charge made to the court below, which was a point by the defendant and was affirmed. If he desired the court to give furthér instructions on the measure of damages than those already given, he should have asked for them. The charge was sufficient, embracing all the material features of the case. In the absence of requests touching particular points, it is too late to complain of the charge after verdict. The first and second specifications are overruled. The third specification is in violation of our rules and is too indefinite to call for discussion.

Judgment affirmed.