13 Pa. Super. 187 | Pa. Super. Ct. | 1900
Opinion by
This was an action of trespass. The gravamen of the plaintiff’s complaint, as set forth in his statement of a.aim, was an injury to real property situated in Montgomery county, occasioned by certain acts of the defendants on thsirrown properties. It appeared on the trial that these properties are also situated in Montgomery county, but this fact owas not distinctly averred in the statement. It should be noticed, however, that they were so described in the statement that the defendants must ha.ve known with reasonable certainty that the property alleged to have been injured was situated, and the acts alleged to have caused the injury were done, in Montgomery county. The defendants neither demurred, pleaded in abatement nor moved for a more specific statement, but
1. The general rule of the common law was that an action, though merely for damages to real proper' y, is local, and should be brought in the county where the property is situated. And this general rule still prevails in Pennsylvania: Prevost v. Gorrell, 2 W. N. C. 440. “"Where, however, an injury has been caused by an act done in one county to land situate in another, or whenever the action is founded upon two or more material facts which took place in different counties, the venue may be laid in either:” 1 Chitty on Pleading (13th Am. ed.), *268. The fact that the road of the turnpike company, one of the defendants, extends into another county does not, without more, bring) the present case within the foregoing exception to the rule, nor .within any other to which our attention has been called. But there is a plain distinction between an action for the recovery of damages for an injuryffo-real property and an action or “.oceeding in rem, where the effect of the judgment could not be had if it were instituted in the wrong county, as in ejectment-where possession is to be delivered by the sheriff of the couxdy. This has an important bearing upon the question of the-bffiect of pleading the general issue and going to trial without raising the objection, in some form, that the action was bro .ight in the wrong county. It may well be conceded that n cases of the latter class the objection may be taken advanlage of at any stage of the proceedings, without conceding that it may be held in reserve until the end of a trial on the merits in cases of the former class. Having regard to the reason of the rule by which actions merely for damages to real property are classified as local and not transitory, we should be inclined to hold, even in the absence of an authoritative ruling on the question, that the objection may be waived, and is waived by pleading the general issue
2. The facts of the case, few of which are in dispute, are very concisely and accurately summarized in the charge of the .learned trial judge. It will be convenient, however, for the purposes of the discussion of the remaining assignments of error to briefly recapitulate them.
The premises of B. F. Shibe, one of the defendants, front on the turnpike of the Philadelphia, Bala and Bryn Mawr Turnpike Company, the other defendant, and are bounded in the
The situation of the plaintiff’s place was low. There was a fall from the turnpike to the lower end of the Shibe lot of about twelve feet, and a further, fall from the end of the plaintiff’s lot on the railroad to Bala avenue, on which it fronts, of about eight feet.
The natural course of surface water from the turnpike was over the Shibe lot. What was not absorbed or did not evaporate was carried off through a gully extending across his lot to the railroad and was then conducted through a culvert under the railroad to the land of the plaintiff, whose predecessor in title had constructed a nine-inch drain opposite the culvert to receive the same.
In 1894, Mr. Shibe filled up his lot and the gully above referred to, the consequence of which was to turn the water back onto the turnpike, and thence out of its natural course to lands on the south. Thereupon the turnpike company, with the consent of Shibe, constructed a culvert under and across the turnpike, in which was laid a twelve-inch'iron pipe, and connected it with a terra-cotta pipe laid across the Shibe lot to the railroad culvert in substantially the same course that the water naturally flowed before.
It is self evident, as the defendants’ counsel says, that the railroad culvert necessarily concentrated all the water which reached the plaintiff from the east, and neither of the appellants is responsible for the consequences of concentrating the flow of water through that culvert. But the clear preponderance of evidence established the fact that, in consequence of the construction of the artificial drain which led to the culvert, more water was brought on the plaintiff Is land than would have reached it if the water had been allowed to take its natural course, and that the plaintiff’s property was injured thereby. We do not think it can be disputed that the plaintiff would be entitled to damages for the resultant injury, even though no additional water ran from the pipe than the quantity which would have been absorbed if it had been allowed to run over the surface of Shibe’s land. The court correctly charged that an owner of land has no right by means of artificial drains to
3. The defendants further contend that under the evidence a joint verdict or judgment could not be permitted against Shibe and the turnpike company. In considering this proposition it will be necessary to go a little more into detail in examining the plaintiff’s claim and the evidence adduced in support of it. He claimed that he was injured in two ways: first, by the increase of the volume of water brought from the turnpike and cast on his lot; second, by the pollution of the water. Evidence was given as to his damages in respect of each of these alleged injuries, and the -case was submitted to the jury with instructions that they might take both into consideration. To
We are not convinced that the court could have charged as matter of law that Shibe was not jointly liable with the turnpike company for the injury caused by the use of the drain for the purpose of casting upon the plaintiff’s lot water that would not have reached it if it had been allowed to take its natural course. We have already alluded to the fact that it was constructed and maintained across Shibe’s lot with his consent; he knowing the purpose for which it was constructed, and, presumably, knowing the effect upon his neighbor’s property of thus concentrating in an artificial channel the water that formerly flowed over and upon his own property. In addition to this, his testimony, whilst confused, evasive and somewhat contradictory, tended to show that he contributed to the cost of the drain. Indeed, he said so in one part of his testimony, and, whilst he qualified this somewhat, when called later in the case, it was for the jury to determine his credibility as a witness, the meaning of his words, and find the facts: Maynes v. Atwater, 88 Pa. 496; Loeb v. Mellinger, 12 Pa. Superior Ct. 592. “ A trespasser may be not only he who does the act, but who commands or procures it to be done .... who aids or assists in it .... or who assents afterwards: ” Barker v. Braham, 2 W. Bl. 866, cited in Pollock on Torts, 87. “ Where one person aids, assists, or employs another to commit a trespass, or assents to its commission, having an interest therein, a joint action will lie: ” Bard v. Yohn, 26 Pa. 482. If Shibe permitted this drain to be laid on his premises to carry off the water, which but for his previous act would have been cast upon his lot, thus deriving a benefit from it, and especially if he paid part of the cost of it, there was sufficient evidence of concert of action to warrant a verdict against both parties for the injury of every land resulting to the plaintiff’s property from their joint act, which
As to the other branch of the plaintiff’s claim a different state of facts is presented. As we have repeatedly said, the drain was constructed for a particular purpose, namely to drain the turnpike. There is not a scrap of testimony tending to show that any other use of it was contemplated when it was originally constructed. It appears, however, that after its construction, Shibe opened a connection with this drain for the purpose of carrying off the refuse water from his kitchen and washhouse. It was claimed that this (we quote now from the charge), “had a tendency to pollute the well — the waters which were in the well of the plaintiff.” There is no evidence that the representatives of the turnpike company knew of Shibes use of the drain for this purpose until after he had made the connection, nor is there any evidence that they ever, either expressly or impliedly, assented to it. In general where two or more persons act independently in producing an injury, they are not jointly liable for the combined results of their acts, and the fact that it is difficult to determine the relative proportion of injury caused by each is not a sufficient reason for holding them jointly liable. The principle is well illustrated in Little Schuylkill Nav. Co. v. Richards, 57 Pa. 142. Suit was brought for damages to a dam filled by deposits of coal dirt from different mines on the stream, some of which were worked by the defendants and their tenants, and some by persons not connected with the defendants. It was held that the defendants were not liable for the whole damage caused by the deposits, nor for the acts of their tenants so far as these were done without their sanction. Mr. Justice Agnew said: “ Without concert of action, no joint suit could be brought against the owners of all the collieries, and clearly this must be the test.” This principle has been recognized in many similar cases in Pennsylvania, amongst which may be mentioned, Seely v. Alden, 61 Pa. 302, Little Schuylkill Nav. Co. v. French, 81* Pa. 366, Gallagher v. Kemmerer, 144 Pa. 509. It has also been recognized and applied in cases brought to recover damages for the pollution of a stream by
Without .further, elaboration we conclude, first, there might have been a verdict against both defendants for the damages for which they were jointly liable; or, second, if the plaintiff saw fit to abandon that claim, there might have been a verdict against Shibe alone for the injury for which he alone was liable; but, third, there could not be a verdict against both defendants for both injuries. Whilst, therefore, the defendants were, not entitled to an unqualified affirmance of their fifth point (ninth assignment) yet the plaintiff’s points, especially the sixth, (fourth assignment), should have been qualified as indicated in the foregoing opinion.
The judgment is reversed and a venire facias de novo awarded.