32 Pa. 398 | Pa. | 1859
The opinion of the court was delivered by
Joseph Parke was the owner of a tract of land in Sadsbury township, Chester county, through which flowed a stream, called Buck Run. In the year 1818, he sold the lower part of this tract, with a grist-mill erected on it, to Thomas Atkins; and in 1820, or 1822, erected on the upper tract a saw-mill. On the .6th July 1857, Evan Jones, the present owner of the lower tract, conveyed to Atkins, commenced an action on the case for a nuisance, against Thomas Crow, the tenant of William Parke, the then owner of the upper tract and saw-mill.
The injury complained of was, that the defendant wrongfully and unjustly cast and deposited, and caused to be cast and deposited, from the said saw-mill of the defendant, and by the working and use thereof, into and near to other parts of the said stream or watercourse, higher up the stream thereof than the mill-dam and mill-race and other premises of the plaintiff, divers large quantities of sawdust, which there flowed and came in large quantities into the said stream or watercourse higher in the stream thereof than the premises of the plaintiff, and flowed and came down the said stream or watercourse, into the said mill-dam and mill-race of the plaintiff, by reason of which the said mill-dam and mill-race of the plaintiff were and are greatly obstructed and filled up; and the plaintiff is prevented from having the free use of the water of the said stream for his mill, and is prevented from exercising his trade or business in as beneficial a manner as otherwise he might and would have done; and he has been injured in his business, and his said premises have been deteriorated in value.
The saw-mill was at first worked with an upright saw. This continued until 1854, when a circular saw was put up and abandoned, and then two circular saws were put up; but the upright and circular saws were not in operation at the same time.
As in all saw-mills, the sawdust, from the first working of the upright saw, fell, in larger or smaller quantities, into the tail-race of the defendant, and thence passed down the stream; portions of it, no doubt, settling in the stream on the plaintiff’s premises.
This was the real injury complained of; and the defence was, that this injury (if there was any sustained) commenced more than twenty-one years before this suit was brought. There is no doubt
The judge, therefore, correctly said, “ If the jury believe that for the period of twenty-one years, during George W. Parke’s occupancy of the defendant’s mill, the sawdust thereof was cast into the water and came down thereby upon the plaintiff’s land, the law presumes a grant of the privilege to do so, and the right thereby acquired is indefeasible.” “It is proper to observe,” says the judge, “that the plaintiff’s points are true, and are hereby affirmed; that the owner of the land below is entitled to the use of the unobstructed flow of water through his land, and the party who claims the right to obstruct or interfere with such flow by reason of long usage, must prove to the satisfaction of the jury, that such obstruction or interference has been continued, exclusive, and with the knowledge and acquiescence of the owner of the land for twenty-one years. The proof in such case should be clear, definite, and unequivocal, both as to the time of the enjoyment, and the extent of the obstruction.”
In speaking of the extent of the right thus acquired, the judge says, “it must be measured by the enjoyment of it, and he had no right to use it in a different and more extensive manner.”
This principle is still more distinctly displayed in the two points submitted by the plaintiff and affirmed by the court:—
1. If the use of the circular saw, or the apparatus of the defendant for carrying the sawdust into the plaintiff’s watercourse, has increased the obstruction beyond what it was before, the plaintiff is entitled to recover.
2. It is not necessary that the plaintiff should prove actual injury. If the sawdust was deposited in the race of the plaintiff by the act of the defendant, without right, it is sufficient to sustain the plaintiff’s action.
It appears to us, that the instructions of the judge were eminently clear and correct, and the questions of fact being all submitted to and found by the jury in favour of the defendant, there is no reason to disturb the judgment below.
There are two other points which, however, require notice. The judge properly refused to charge the jury that the plaintiff, by opening or constructing new races or ditches to conduct the water to his mill; within twenty-one years, could affect the easement of the defendant; which was the right of having the sawdust cast into the water, carried down thereby upon the plaintiff’s land.
The other was a mistake of fact, which, if pointed out at the time, would have been corrected at once; and which had no effect
Judgment affirmed.