Schlag v. Jones

131 Pa. 62 | Pa. | 1890

Opinion,

Mr. Justice Williams :

These cases were heard together. They present a novel state of facts, and raise an interesting legal question. It appears that in 1871 one Klopfer owned a tract of farm land in Shaler township, which he laid out in town lots and offered for sale. In 1872 he sold six lots, having together a front of 144 feet along the lower side of Evergreen street, to Pfiester. Over one of these lots a small brook ran on its way to Girty’s run. It was carried, over a mill-race on the other side of the street, in a trough or bridge, to the road-way, across which it was conducted in a sluice, from which it fell upon one of the lots sold Pfiester, and found its way across the field to the run. Pfiester appears to have been among the first of the purchasers from Klopfer to build upon his lots. He filled and graded the lots along their entire front, and then covered them with a row of seven houses, built in 1878. The street was raised, presumably under the directions of the proper officers, to a grade corresponding with that of the lots, the trough over the race was removed, and whatever water was flowing along the bed of the brook fell into the race, and followed its course to the mill and Girty’s run. Without the trough it could not reach the street. In the street, and on the lots of Pfiester, the filling and grading had covered up its former channel, so that the water could not flow in it if the trough over the race had remained. On the other side of the street the lots were owned by Seibert. He graded and filled in the upper side of the street to correspond with the work on the lower side, and built over his entire front. This filled the bed of the stream for a considerable distance above the street, turned it into' Gray’s alley, and forced it to find its way to the race at another point by the way of the alley.

Now, it must be borne in mind that the lots owned by the plaintiffs below do not lie upon or along this alleged watercourse. They are upon the upper side of Evergreen street, but at some distance to one side. The water is not thrown back upon them by the grading on Pfiester’s lots, or by the filling of the street, or by the grading and filling on Seibert’s lots; but, passing around Seibert’s improvements, the brook finds its way into Gray’s alley, follows that to the race, and then follows the race in its effort to reach Girty’s run, until, passing the houses of the plaintiffs, it finds its way by percolation from the race into their cellars. It will thus be seen that no question affecting the rights of riparian owners is presented, for the plaintiffs had no ownership upon or interest in the water-course. The lots of the plaintiffs are in no sense a dominant tenement, having an easement on or over the property of the defendant. They very clearly had no such easement. The rule is well stated in Angelí on Water-Courses, 6th ed. § 108 o, as follows: “ It is only when the flow of water on one person’s land is identified with that on his neighbor’s, by being traceable to it along a distinct and defined course, that the two proprietors can have natural relations with each other in respect of it, considered as the subject of separate existence.” This case does not involve an interference with such a “ distinct and defined course ” of a stream, as to raise any question about the right of an upper owner to have the water pass from his lands, or of a lower owner to insist that it shall come to him along its usual bed, but owner's of lots in the neighborhood complain that water has been thrown upon them by the wrongful act of Pfiester. Whether the water shall follow its original bed is not for them to say, for they have no interest in the original bed, and no rights over it as riparian owners. They have a right to insist that it shall not be thrown upon them, and to treat the act of him or them by whom it it so thrown as a trespass.

But their action is against Jones, and we are to inquire into his relation to the trespass. The trespass was committed by Pfiester in 1873. Jones acquired his title to the two houses owned by him nine years after they were built, and nine years after the filling was done. The houses of the plaintiffs were also on the ground at that time, and some of them had been occupied for six years. These actions were brought in 1888, six years after Jones acquired title, and fifteen years after the grading and filling by Pfiester which is now the subject of complaint. How, then, is Jones liable? It is admitted that he has done no act that is complained of. He merely became the owner of the houses nine years after they were built, and has continued to own and use them. But it is said that his grantor obstructed a natural water-course in the construction of these houses, and that Jones has been notified of that fact, and has thus become liable to respond in damages for continuing the • obstruction. Whatever might be the effect of such a notice from the owner of a superior or inferior tenement having rights in the water-course, the notice relied on comes from those who have no more right to give it than any other citizen of Shaler township. Their lots do not touch nor are they in any manner affected by the water-course. They lie along the old race, and the complaint of the owners is that the water of the stream finds its way into the race, along the race to the front of their houses, and through the soil into their cellars. Some of their houses were built in 1876, some in 1878, and the rest in 1882, —:all of them six and some of them twelve years before this suit was brought. The obstruction on Pfiester’s lots and in the street was there, and the water was running in the race for three years before any of their houses were built, so that they had the fullest knowledge of the situation before they began to build. Upon these facts we hold the law to be:

1. That the plaintiffs, having no interest in the water-course, have no right to invoke the rules of law intended for the protection of those who have an easement, as riparian owners, in the flow of the water over the lands of others.

2. That the notice to Jones that his predecessor in title had obstructed the flow of the water along a natural bed did not affect him, because it did not come from one having any ownership in or along the bed or water-course which was the subject of the notice.

3. Upon the facts before us, Jones is not liable for the trespass of his vendor. The damages, whether direct or consequential, that flow from the act of Pfiester, to those not interested in the water-course, are like the damages resulting from any other trespass, and are. properly chargeable to him by whom the trespass was committed.

4. In the absence of proof to the contrary, it is to be presumed that the change in grade of the street in front of Pfiester’s lots was made under the direction of the public authorities. Especially ought this to be presumed after 15 years of acquiescence and use of the highway as graded. For the reasons now given,

The judgment is reversed.