Finn v. Providence Gas & Water Co.

99 Pa. 631 | Pa. | 1882

Mr. Justice Sterrett

delivered the opinion of the court, October 2d 1882.

The second section of the Act of 1867, incorporating the defendant company, invests it with all the immunities, franchises, rights and privileges authorized and granted to both gas and water companies by the Act of March lltli 1857, entitled “An Act to provide for the incorporation of gas and water companies,” subject to all liabilities, duties and restrictions therein mentioned. For the purposes contemplated by the Act, the company is specially empowered by the third section thereof, “to enter upon any lands, roads, streets, lanes or inclosures, .... and to take the water from any rivulet, creek or stream. Provided, that compensation for damages done shall be made in the manner prescribed by the Act aforesaid P. L. (1867) 249.

In the exercise of its corporate powers, the company built a dam across the outlet of “ Mud pond,” and constructed a storing reservoir covering nearly sixty acres of land, including, at the upper or westerly end thereof, about twelve and a half acres of plaintiff’s farm, together with buildings and improvements, orchard and several springs thereon, by which the pond was in part supplied. Failing to agree with him as to the amount of damages to which he was entitled, the company filed a bond and took possession of the land. Yiewers were appointed, from whose award an appeal was taken, and on trial of the issue framed for the purpose of determining the amount of damages done and likely to be done to plaintiff by reason of taking and overflowing his land, the • several questions presented by the specifications of error arose.

The first is, in overruling plaintiff’s objection to one of the jurors, who had been struck from the panel when the jury of view was selected. It is contended he was entitled to four peremptory challenges in addition to those previously struck from the list in the prothonotary’s office, and that in empanel-ling the jury for trial, none of those who had been struck should have been called. The Act of 1834 provides that whenever a view shall be allowed in any case, and a jury shall be struck from the list of persons drawn for the ensuing court, the prothonotary, upon the precept of either party, shall issue a special venire, containing the names of such jury, with a clause commanding the sheriff to cause the said jurors, or six of the first twelve of them, to view the premises at some convenient time before the trial, etc.: Purdon 837, pl. 76. It also directs that, at the calling of the jury to try a cause in which a view shall have been had, those of the viewers who shall appear, shall first be sworn, and so many jurors shall be drawn and added to said viewers, as shall, after default and challenges allowed, make up the number twelve, to be sworn for the trial of the cause: Id. pi. 78. We are clearly of opinion that the additional number of jurors thus to be called, should be drawn from the names attached to the special venire which the prothonotary is directed to issue. This necessarily excludes those who have been previously struck by the parties from the general list: 1 Troub. & II. Prac. 560. But the plaintiff has no reason to complain of what was done, unless he was thereby deprived of one of his four peremptory challenges ; and the record fails to show that he was. The error was, therefore, harmless.

There was no error in excluding the testimony complained of in the second assignment. The evidence offered was properly a part of the plaintiff’s case in chief; and, while, in the discretion of the court, it might have been received, its rejection is not ground of reversal.

We think the court erred in affirming defendant’s third point, whereby the jury was instructed that “ in estimating the damages, consequential or speculative damages are to be rejected.” The company, as wo have seen, is required by its charter to make compensation for damages done. This includes consequential as well as direct damages ; compensation not only for the land actually taken, but also for the injury, if any, resulting therefrom to the residue of his farm. It 'is true the learned judge, in affirming defendant’s first point, said to the jury that “the only safe rule in estimating the injury to the property, if there is any, is to inquire what the farm,' unaffected by the building of the dam, would have sold for at the time the injury was committed, and what it would sell for as affected by the injury, and the difference is the true measure of compensation.” This was followed, however, by the specific instruction complained of, that. consequential damages should be rejected ; and thus the measure of damages previously stated, was qualified in a way calculated to mislead the jury. The fourth assignment is sustained.

In answering defendant’s eighth point, a rule of damages, applicable solely to the dwelling-house on the land taken, was given to the jury. They were told, in substance, that the damage to the house was what it was fairly worth to remove the same to some convenient place outside the land covered by the reservoir, including the cost of putting it in as good order as before. This is justly the subject of complaint in the fifth assignment. The house on the land taken was part of the realty, and could not be considered except in connection therewith. The plaintiff was not required, nor had he a right to remove any of the buildings or improvements on the land appropriated by the company, and hence an inquiry as to the cost of such removal was entirely foreign to the question before the jury.

The subject of complaint in the sixth assignment is the refusal of the court to affirm plaintiff’s second point. The company undoubtedly has the right, in its discretion, to enclose the reservoir, and prohibit the plaintiff from using, either the water therein, or the springs on the land appropriated by it for corporate purposes. The point should have been affirmed.

The seventh assignment involves a similar error. What the learned judge said as to the right of a riparian owner to use water, etc., may be all very true, but it was inapplicable to this case, and was well calculated to mislead the jury to the prejudice of the plaintiff. If the company deems it necessary, it has an undoubted right to enclose its reservoir, and prohibit access to it by the plaintiff and everybody else. The plaintiff, as owner of the land adjoining that taken by the company for the purpose of constructing its reservoir, is in no proper sense of the term a riparian owner.

None of the remaining assignments require special notice. They are not sustained.

Judgment reversed, and a venire facias de novo awarded.