172 Pa. 323 | Pa. | 1896
Opinion by
The plaintiff, Joseph Hileman, was the lower landowner on
The third, fourth, fifth and sixth assignments practically raise the same question. The court permitted plaintiff to offer evidence that defendants were the owners and operators of a distillery, and that they negligently permitted the noxious ref
The seventh and eighth assignments are to the ruling of the court permitting plaintiff, under act of May 2, 1876, to give notice of claim for damages up to date of trial, and to offer evidence under the notice. The act says: “ In all actions now pending or hereafter to be brought for the recovery of damages, or mesne profits, it shall be lawful for the plaintiff at any time not less than fifteen days before trial, to give notice to the defendant or his attorneys that he proposes to claim damages or mesne profits up to the date of trial of such suit; and on such trial the plaintiff may recover such damages or mesne profits, not barred by the statute of limitations, to the time of such trial, as may be warranted by the law and the evidence.”
Clearly, the purpose of the act was to relieve from the necessity of multiplied actions. If the right of a plaintiff is determined in one action, it tends to a cessation of strife and prevention of accumulation of costs to have his damages determined by the same trial. In three distinct instances in one short section, the disjunctive is used by the legislature: “ Damages or mesne profits.” This indicates an intention to extend the act to cover also, cases other than those where the possession as against the plaintiff is wrongful; it seems to have been
The act of 1876 certainly contemplated no such absurdity. While the point raised here is new, and appellant’s argument is plausible; still we are of opinion the act includes within its terms every such cause of action as from its nature is a persistent, continuing wrong. Therefore the seventh and eighth assignments of error are also overruled, and the judgment is affirmed.