Marshall v. Hershey

185 Pa. 238 | Pa. | 1898

Opinion by

Mb. Justice Fell,

The judgment in a prior action between the same parties determined the right of the plaintiff to the use of so much of the water of the stream which ran through his farm as was necessary for agricultural and domestic purposes. On the trial of that action the plaintiff, whose land is below that of the defendant, conceded the defendant’s prescriptive right to divert a part of the water to his mill, but he claimed that enough should be left to flow in the natural channel to supply the needs of his farm and dwelling. The defendant claimed the right to use all of the water, and had diverted all of it to his mill. The issue raised was decided in favor of the plaintiff, and his right thus established. The present action was defended on the ground that at the former trial the plaintiff had fixed a standard for the measurement of the amount of water to which he was entitled, and that he had since received all that he then claimed. Part of the testimony of the first trial was read to the jury, and it was left to them to find whether the plaintiff had at that trial fixed a standard and if so, whether he had been supplied according to his own measure.

It appeared at the first trial that the plaintiff had purchased his property twenty-four years before the commencement of any litigation concerning the water right, and that, at that time, at or near the point where the water was diverted to the defendant’s mill, a wooden pump stock ten feet long with a bore of two and one half inches extended through an embankment and conducted water from the mill race to the natural channel, and that' when it was unobstructed the supply was sufficient. This pump stock had been removed ten or twelve years before the trial. After its removal the plaintiff’s supply of water came by means of a ditch, until it was finally shut off altogether by the defendant. Immediately after the trial the defendant opened a ditch across the embankment, which furnished an adequate supply, but a few weeks later he closed this ditch and placed a pump stock with a bore of two and a half inches through the embankment, and then claimed that he was furnishing water according to the standard set up by the plaintiff for the measurement of his right, although the amount thus furnished was insufficient for the plaintiff’s use. In fact, at times, there was not enough thus furnished to reach the plaintiff’s property.

By the statement filed in the former action the plaintiff did not limit his right but claimed the natural flow of the stream. At the trial he conceded the right of the defendant to divert a part, but he.distinctly asserted his right to have at all times an uninterrupted flow of water sufficient for his needs. Whether he had this right was the question submitted by the charge and decided by the verdict and judgment. The plaintiff had shown that a part of the stream had passed in its original channel through his property immemorially until the defendant had diverted all of the water. In describing the condition of the stream when he first took possession of his property, twenty-four years before, he spoke of the pump stock by means of which the water was conducted from the mill race, and of its removal and the substitution of a drain for the same purpose, and said that the supply had always been sufficient unless the stock or drain became obstructed. This was in support of his claim of a right to have enough water, by showing that an uninterrupted supply had always been furnished; and nothing that he then said can be construed as limiting the right which he asserted by setting up a standard by which the water should be measured out to him through a two and one half inch pipe. The uncertainty of such a standard, as to both the quantity and sufficiency of the supply, is manifest. The quantity of water that would pass through the pipe would depend on the head of water in the mill race and the inclination of the pipe, and its position in relation to the current, and a quantity sufficient during a wet season might be insufficient during a dry one. We speak only of the testimony of the first trial which was introduced at the second, as it is all that the record presents. In this we find nothing which justified the submission of the question to the jury.

The assignments of error from the eighth to the fourteenth inclusive are sustained, and the judgment is reversed with a venire facias de novo.