Eshleman v. Martic Township, 152 Pa. 68

Eshleman v. Martic Township

152 Pa. 68 | Pa. | 1892

Opinion by

Me. Justice McCollum,

The several specifications of error which relate to the admission of evidence on the subject of damages may be considered together. This evidence consisted mainly of the opinions of witnesses respecting the difference in the market value of the property with the water flowing upon and across it as described by them, and the market value of it with the water excluded from it. These opinions were evidently formed on the theory of a continued and permanent use of the property by the municipal authorities for the purpose of drainage in the manner complained of. It was a species of evidence appropriate to a case for the recovery of damages resulting from an easement created by the exercise of the power of eminent domain, but it was not applicable to this issue. In the recent case of Robb v. Carnegie, 145 Pa. 324, and Lentz v. Carnegie, Ibid. 612, this subject was fully considered, and it was held that the true measure of damages in a case like the present, is the cost of remedying the injury unless that equals or exceeds the value of the thing injured, when such value becomes the measure. *76The case in hand is an action of trespass for turning the water, or permitting it to run from the highway, upon the laud of the appellee. In the act or omission complained of there was no acquisition by the township of a right to turn the water upon his land, or to allow it to flow there. The injury inflicted was not necessarily continuing and permanent, because it was practicable to restore the property to its former condition. In his charge to the jury the learned judge said: “ In estimating the damages you will be confined within six years prior to February 1, 1888. My own judgment is that you should not go further back than 1885, when the witnesses say the drain on the east side was closed and the water was turned in on plaintiff’s property by the supervisors. You must be confined to actual damages done during the time stated, and the loss and injury to his property, not permanently but during the period stated, for if the water be taken away his injury will cease. Nor can you allow any damages since February 1, 1888, when suit was brought; if any damages have been sustained since that, they form the subject of another action.” The substantial correctness of this instruction is not questioned by either party, and it serves to show that error was committed in the admission of the evidence under consideration, but it fails to render such error harmless. In the view we have taken of this evidence the refusal to allow the questions on cross-examination which is the subject of complaint in the third and fourth specifications, becomes unimportant. These questions were pertinent to the examination in chief, and consistency called for their allowance, but as the evidence to which they referred was inadmissible a discussion of them at this time would be profitless. We are not satisfied that any error was committed in the rejection of the question contained in the ninth specification.

If prior to 1882, when it is alleged permission was given to the appellee to convey the water across his field on the east side of the highway, the township had acquired the right to have the water flow upon his land on the west side at the place and in the manner complained of in this action, it may well be doubted whether the evidence was sufficient to justify the conclusion that such right had been surrendered or lost. It matters not whether the easement was obtained by grant or *77prescription. In either case something more than mere nonuser for a period of three years was required to destroy it. In considering the permission to the appellee to turn the water on the east side of the road it is important to know what the rights of the township were at the time it was given. If such permission involved the surrender of an easement by virtue of which the township could lawfully and without expense turn the water on the appellee’s land on the west side of the road, it was not within the power of one supervisor to grant it. A transaction in which a valuable right of the township is relinquished without compensation is not within the scope of powers and duties which are merely ministerial. The appellant’s first point was therefore pertinent to the issue, and should have been affirmed without qualification. The evidence on which it was predicated was sufficient to authorize a finding of such user by the township as was described in it. The answer to it was obscure and misleading and practically a denial of it. The point invited the jury to consider the evidence respecting the user by the township of the appellee’s land on the west side of the road prior to 1882, and the purpose of it was to ascertain the rights of the parties at the time of the alleged permission to the appellee to convey the water across his field on the east side. If it was found that there was such an adverse user by the township as clothed it with a prescriptive right to turn the water upon the land of the appellee on the west side of the highway, the instruction concerning the effect of the permission given to him by the supervisor was erroneous, because, as we have already seen, it was not within the power of one supervisor to surrender such right.

It is clear that the permission to the appellee to dig a ditch on the east side, for the purpose of carrying the water from the highway, was granted on his request, for his accommodation and on terms, but it is not clear that the burden of keeping it open and in repair thereafter was cast upon the township. It was for the jury to determine from the evidence on what terms the permission was given.

The specifications of error which complain of rulings at variance with the foregoing views are sustained and the remaining specifications are overruled.

Judgment reversed and new venire ordered.