144 Pa. 509 | Pennsylvania Court of Common Pleas, Luzerne County | 1891
Opinion,
This action of trespass on the case was brought by Bernard Gallagher, to recover damages for injuries to his land from a deposit of mine-water, culm, and dirt, accumulated thereon from the defendants’ mining operations on Sandy Run creek, in Luzerne county. The creek has its source in the mountains, about four or five miles above Gallagher’s land through which it passes. The defendants’ operations were commenced in the year 1877. The plaintiff alleges that in the process of washing
At the trial, the defendant presented a point for instruction to the jury, as follows:
“That, as it appears from the evidence that the plaintiff settled with Markle & Co. for damages sustained by him for the fouling of Sandy Run and the deposit of culm on his land by them, and it being impossible, under the evidence, to separate and ascertain the proportion of damage caused by them and by the defendants, it having been occasioned by simultaneous and contemporaneous acts, the settlement must be regarded as an accord and satisfaction for the whole damage, and the plaintiff cannot recover in this action.”
This point was negatived, and that is the first error assigned.
It is argued, on the part of the appellants, that the injury to which the plaintiff was subjected was of such a character that it could not, as between the parties who caused it, be divided, so as to determine in what proportion it was caused by each;
In Pittsb. etc. Ry. Co. v. Vance, 115 Pa. 332, we said: “In order that a witness may be competent to testify intelligently as to the market value of land, he should have some special opportunity for observation. He should, in a general way and to a reasonable extent, have in his mind the data from which the proper estimate of value ought to be made. If interrogated, he should be able to disclose sufficient actual knowledge of the subject to indicate that he is in a condition to know what he proposes to state, and to enable the jury to judge of the probable, approximate accuracy of his conclusions.” To this effect, also, is Curtin v. Railroad Co., 135 Pa. 20. Michael Campbell, a witness produced by the plaintiff, said that he was twenty-six years of age ; that he had lived in the neighborhood twelve or thirteen years, and was driving a milk wagon for his father; he was therefore but thirteen years of age when the defendants commenced operations. The plaintiff proposed to prove by this witness the market value of the land free from this deposit of coal dirt, and the market value as affected by it. This necessarily implied a knowledge, on the part of the witness, of the nature and condition of the land before the deposit was made ; but he testified to nothing which justified the admission of his testimony on this point. As to his knowledge of its previous condition, he testified, on cross-examination, as follows:
“ Q. How old are you ? A. Twenty-six. Q. You say that the stream has been bad longer than you can remember? A. Well, no; not so long that I can’t remember it. Good while ago, when I was a small boy. I never took any notice of it. Of course, I know cattle used to drink it at that time. Q. Did you ever see Gallagher’s land before it was covered
The witness might, perhaps, have been competent to testify as to the value of the land after the injury, but it is plain by his own statement that he knew nothing of its nature and character before the injury. He did not pretend to know whether it was dry land, or merely a laurel swamp. How was it possible, therefore, for him to testify as to the value of the land free from the injury complained of ?
The judgment is reversed, and a venire facias de novo awarded.