137 Pa. 234 | Pa. | 1890
Opinion,
In the former action it was determined that the defendant’s dam was “ higher than it ought to be,” and the plaintiff recovered nominal damages. The right of the defendant to maintain a dam at the point in question was not disputed, and the contest related exclusively to its height. It was not essential to the plaintiff’s recovery that he should prove that all the water backed upon his land by the defendant’s dam was unlawfully there, nor a valid defence to the action to show that the defendant had acquired, by grant or user, the right to maintain a dam which would back a considerable portion of it there. The wrong complained of was the maintenance of the dam “ higher than it ought to be,” that is, above its lawful height, and the flowing thereby of the plaintiff’s land; but this height was not defined by the pleadings, or by the verdict. Under the pleadings the plaintiff could not recover for any flooding of his land by the dam, as the defendant had the right to maintain it, but for any flowage caused by an unlawful raising of the dam, he was entitled to the verdict he secured. Any raising of the dam above its lawful height which increased the flow of water on the plaintiff’s land was sufficient to authorize the former judgment, and that, uuon its face, is conclusive only of such matters
It was established by the verdict and judgment .in the former suit that the defendant’s dam, as then maintained, was “ higher than it ought to be,” and by reason thereof increased the flow of water upon the plaintiff’s land. In an action for the continuance of the nuisance, that record was sufficient and .unanswerable proof of these facts. But a reduction of the dam to its lawful height, before the second suit was brought, would prevent a recovery in it. As a slight raising of the dam above its lawful height would sustain the first action, a corresponding reduction of it would defeat the second.
The parties to this action agreed that the questions for determination in it were, whether the defendant had reduced the height of the dam since the former suit, and, if so, whether he had sufficiently reduced it; and they committed these to the final arbitrament of three persons mutually chosen by them. The tribunal thus constituted was necessarily charged with the duty of ascertaining the proper height of the dam, and it was required by the agreement which created it to designate the same by appropriate and permanent marks. In this way the parties to a profitless contention wisely resolved to end it. The arbitrators viewed the premises, and the parties appeared before them with their proofs, and were fully heard. An award was made strictly responsive to the submission, finding that the defendant had sufficiently reduced the dam, and marking its lawful height. The award upon exceptions filed to it was set aside upon the sole ground that, in the opinion of. the learned judge of the court below, there had not been a substantial reduction of the dam. Whilst he conceded that it was not determined by the verdict in the first suit to what extent the dam should be reduced, or what its lawful height was, he assumed that it was his province to reject the judgment of the arbitrators upon this question, if it did not accord with his own. There was no plain mistake of fact or law on the fa-ce of the award, or shown by extrinsic evidence. There was no suggestion that the arbitrators misbehaved themselves in the case, or that the award was procured by corruption or other
The judgment and the order setting aside the award are reversed, and judgment is now entered upon the award in favor of the defendant, and against the plaintiff, for costs.
