267 Pa. 420 | Pa. | 1920
Opinion by
The defendant is a duly incorporated water company, engaged in supplying water to the Borough of Hunting-don and its inhabitants. Its source of supply is a brook called Standing Stone creek; across this defendant’s
The case was well tried. Defendant, as a public service water company, had the right of eminent domain, but did not formally exercise it in this case, and its waterworks system, including this source of supply, was permanent in its nature. True, the dam might need repairs or rebuilding from time to time but it was on land of the water company and intended as a permanent structure. So, whatever injury it caused to land along the stream, was in its nature permanent, and the right of action therefor vested in him who owned the land when the dam was built. The proper measure of dam
Plaintiff urges that the question of transitory damages for injury to his crops should have been submitted to the jury; but it could not properly be done as a separate item of damages; however, a decrease in the productivity of the soil, from its alleged water-soaked condition, was proper for the consideration of the jury, as affecting the permanent injury to the land.
The damages which plaintiff could recover were such only as resulted from the proper construction and operation of the dam and not from defendant’s negligence. For the latter plaintiff might recover transitory damages to land or crops. However, the burden of proof was upon him to show such negligence (Berninger v. Sunbury, etc., R. R. Co., 203 Pa. 516) and there his case failed, for there was no evidence to support a finding of negligence in the construction or operation of the dam. True, he proved there were no floodgates or spillways in the dam, but failed to prove the necessity for any, or that their absence in any manner contributed to Ms injury, while the only evidence relating to that question was to the contrary. The court could not take judicial
The case of Sebree v. Huntingdon Water Supply Co., supra, was an appeal to the Superior Court from the judgment on a former trial of this case, and the questions here involved are there elaborately discussed in an opinion by the late Judge Williams.
The assignments of error are overruled and the judgment is affirmed.