188 Pa. 521 | Pa. | 1898
Opinion by
This action was to recover damages for the unlawful diversion by defendant of the water of a stream which furnished power for the plaintiff’s factory. The stream in question is the outlet of a small lake which the defendant purchased in order to secure a supply of water to furnish the borough of Montrose. Some eighty years ago a dam was constructed across the stream at a point near the lake to secure a supply of water for the use of a gristmill. The plaintiff’s factory, which has been in operation seventy years, is half a mile further down the stream. The conveyance to the defendant included the dam and a roadway which had been maintained over it for many years, first as a public road and afterwards as a way to the grantor’s buildings, and it accepted the conveyance charged with the duty of maintaining the dam and the way over it.
It seems to have been conceded at the trial that the defendant had no right to divert the water of the lake for the purpose of sale, to the injury of the plaintiff, and it claimed not to have done so, and that the detention of water had been for a reasonable time only in order that repairs might be made to the dam and the roadway. These were the issues of fact raised, and the
The first assignment relates to the right to recover nominal damages for the diversion of water from the stream in the absence of proof of actual loss to the plaintiff resulting therefrom, and the sixth assignment raises the same question. The full answer to the point presented is not given in the sixth assignment. The point was considered at the trial as touching the question of nominal damages only, and under the testimony it could have had no other application to the case. As the verdict is based upon the finding that actual damage had been sustained, it is unnecessary to consider these assignments. The third assignment should be sustained if the flow of water was stopped for the purpose of repairing the roadway and dam. This the defendant had the right, and was under the duty to its grantor, to do, and a lower riparian owner could not recover against it unless the flow was interrupted for an unreasonable length of time. But the whole testimony shows that the water was shut off in order that material changes might be made in the dam, whereby the water in the lake could be raised and at times entirely shut off. The evident purpose was not to repair the roadway and dam for the use of the defendant’s grantor, but to increase the storage capacity of the lake, and to give the defendant entire control of the water it contained. The third and fourth assignments are without merit. As there was evidence that the water was held back for a considerable time before the gate was put in, the date when it was put in was not the starting point in computing the plaintiff’s loss. The testimony of the plaintiff and his daughter as to conversations had by him with officers of the water company was admitted for the purpose of showing that he had not acquiesced in the invasion of his rights. It was admitted under a distinct offer to that effect, and the learned judge in his charge restricted it to this purpose, and cautioned the jury not to consider it in determining the amount of the verdict if they found that the plaintiff was entitled to. recover.
The judgment is affirmed.
