191 A. 393 | Pa. Super. Ct. | 1937
Argued March 10, 1937. The defendant has appealed from a judgment for *317 $1,250 obtained by plaintiff in an action of trespass.
The plaintiff is the owner of a farm in Lancaster county, through which runs a stream, known as Mill Creek, from which he obtains water for domestic purposes, stock, and for other uses in connection with the conduct of his farm. Mill Creek rises in the Welsh mountains and is fed by a number of contributory streams.
The defendant, in 1930, purchased a tract of land about a mile and a half east of plaintiff's property, on which are located the Miller springs. The plaintiff complains that defendant built cement walls around these springs and diverted the flow of the water thereof into pipes by which it was conveyed to the defendant borough.
This suit is to recover permanent damages. It was brought three days after the pipes had been connected to the springs, but was not tried until April 2, 1935. No affidavit of defense was filed, but at the trial the defendant denied that the taking of the water diminished the flow of Mill Creek to any appreciable extent as the Miller springs contributed but a small part of the water in Mill Creek when it reached plaintiff's land, and that any water has been diverted from the springs since the summer of 1932, and therefore contends that plaintiff has not suffered any permanent injury.
The appellant argues that the plaintiff failed to "individuate the cause of his injury," and directs our attention particularly to the testimony of plaintiff's witness, Adam Esbenshade, who stated that he had made a small ditch with a shovel in 1931 to bring a little water to his farm from Mill Creek before it reached the plaintiff's land, citing Applebaum v. P.R.T. Co.,
The plaintiff's testimony showed that, prior to the defendant's diversion of the water of the Miller springs, Mill Creek had a good flow of water, entirely adequate for his purpose. In the summer of 1931, after the diversion of the water, the flow was less in quantity and the creek was practically dry during the summer and fall, and the water was so stagnant it was not fit to give to the stock. In the summer of 1932 and 1933 there was a slight increase in the flow and in 1934 a little more than in 1933, but after 1931 the water was entirely insufficient for domestic purposes or for his stock.
Whether Esbenshade diverted such an amount of water from Mill Creek as to affect its flow and to be the primary cause of the damages alleged by plaintiff was a question for the jury's determination: Adam v. Moll,
The defendant's next position is that there was no evidence of permanent injury to the plaintiff's farm, as the alleged shortage of water existed only in the *319
summer months. The burden, of course, was on plaintiff to show a permanent injury, or that the condition complained of was reasonably certain to be permanent. Irving v. Boro. of Media,
True, since the trial of the cause, the water pipes connected by defendant with the springs have been severed; but the rights of the parties were to be adjudged as of the time of the trial and the jury was to take into consideration the probability of its continuance as shown by the evidence. In Bare v. Hoffman,
In our judgment, the question of the permanency of the damages was for the jury.
The defendant complains of certain alleged errors in the trial, consisting of the judge's rulings on the evidence, his general prejudicial attitude, and the affirmance of certain of plaintiff's points. We think it is unnecessary to discuss these various complaints. They have all been given consideration and we find no merit in them.
Exception is also taken by the defendant to the failure to permit the jury to view the premises before the trial began. That was a motion addressed to the discretion of the trial judge, and his refusal thereof is not reversible error unless there is a clear abuse of discretion. The trial took place in the spring of the year and it might well be that at that period the water in the stream would not have given correct information as to the amount of water usually therein. In Com. v. Miller,
The jury seems to have been liberal in awarding $1,750 damages. The court, however, in passing upon the motion for a new trial, ordered the verdict to be reduced to $1,250, and that, if the plaintiff remitted *321 the excess amount within fifteen days, the rule for a new trial was to be discharged. The plaintiff filed a remittitur within that period. We cannot say that the judgment as entered is so excessive as to justify our interference.
A review of this case convinces us that the trial was properly conducted and that the issues of fact were carefully and adequately submitted to the jury. No reason has been advanced to warrant the conclusion that reversible error was committed by the trial judge.
Judgment is affirmed.