219 Pa. 210 | Pa. | 1908
Opinion by
The plaintiff in this case is the owner of a gristmill located on the Little Conemaugh river, in the borough of Summerhill in Cambria county. The main line of the Pennsylvania Railroad crosses the river at two points above the mill. In 1901 the railroad company straightened its tracks in this vicinity, and erected two stone arched bridges over the river. The first bridge was about 6.00 feet from the mill, and was built upon the right of way acquired by the railroad company many years ago. The second bridge was more than 3,700 feet from the mill, and was not upon the original right of way. The reservoir created by the milldam was about 5,600 feet in its total length, and extended some 1,900 feet eastwardly and beyond the location of the upper bridge.
In plaintiff’s statement it is averred that “ during the construction of said railroad and the changing of the roadbed and the building of the bridges and other improvements, the said defendant company.have made cuts, fills, grades, and built wooden, iron and stone bridges and trestles in and upon the lands of the-plaintiff, and left deposits of earth, rock, stone, timber and other debris in and upon the said lands of the plaintiff ;• that sáid deposits of earth, rock, stone, timber and other debris were deposited in the plaintiff’s dam or reservoir, thereby reducing the size of the dam or reservoir, and reducing the quantity' of water power contained therein.”
Under the authority of our cases, a variance between the writ or declaration in this respect is not a good ground of demurrer; nor can there be, under our practice, oyer of the writ. In Dillman v. Schultz, 5 S. & R. 35, Justice Duncan said (p. 36): “ I do not know whether in any stage of an action, advantage could be taken of a variance between the writ and declaration, where the cause of action appeared to be the same. The cases are collected by Sorgt. Williams, in his edition of Saunders in the note to Redman v. Edolph, 1 Saund. 318a, who says, it seems to follow from all the decisions, that no advantage can be taken of a defective original, or of a variance between the writ and the declaration. However this may be, it cannot be taken advantage of where the defendant pleads in bar to the declaration.”
In Overseers of Roxborough v. Bunn, 12 S. & R. 291, this court, speaking again by Justice Duncan, said (p. 295): “In England, a judgment is never reversed in any court of record, for any variance in any writ, original or judicial, from the declaration or other proceedings: Helliot v. Selby, 2 Salk. 701. There the court held, that a defendant cannot take advantage of a variance between a writ and count, without craving oyer of the writ. In Ford v. Burnham, Barnes, 340, the court, as praying oyer of the original, had been much used to delay, came to a resolution not to grant oyer of the original in future; and, so far have the courts discouraged this dilatory course, that with respect to a writ of error for a defective original, as it would be a hard case to set aside a judgment for a mere slip, the master of the rolls would defeat the writ of error by ordering the original to be amended, or, if necessary, granting a new one: Hole v. Finch, 2 Wils. 393; Redman v.
In 1 Chitty’s Pleading, 9th Am. ed., sec. 244, it is stated that: “ Regularly the declaration should correspond with the process, but as according to the present practice of the courts, oyer of the writ cannot be craved, a variance between the writ and the declaration cannot in any case be pleaded in abatement or otherwise.”
And again, the same author, in the 16th Am. ed., sec. 269, states that: “ It is an indispensable requisite of every declaration that it substantially adhere to the form of action stated in the process, and if it deviate, the defendant may apply to the court or a judge to set aside the declaration for irregularity ; so that the plaintiff must abandon his first process and issue a fresh writ stating a form of action adapted to that in his declaration. But the objection is not a ground of demurrer to the declaration, but merely of a summary application to set aside the declaration for irregularity. ... If the body of the declaration state a' cause of action that is not, nor could be, properly declared for in the form of action stated in the writ, then the deviation would constitute an irregularity and ground for setting aside the declaration, but not a ground of demurrer.”
The first assignment of error is therefore dismissed.
It appears that the defendant in this case entered a rule of reference under the compulsory arbitration act, and the cause was referred to arbitrators, who found in favor of the plaintiff in the sum of $4,000. From this award plaintiff appealed. Defendant moved to strike off the appeal, on the ground that the plaintiff had not appeared either in person or by counsel, and had offered no testimony before the arbitrators, and was therefore not entitled to appeal. This motion was overruled by the trial court, and its action in so doing is assigned as error. Counsel for appellant does not cite any authority for his contention in this respect. The compulsory arbitration Act of June 16, 1836, P. L. 715, under which the reference in this case was made, provides expressly in section 17 for the method of proceeding before the arbitrators where only one party attends. By section 27 it is provided that: “ Either party may appeal from an award of arbitrators to the court in which such
¥e see no merit in the remaining assignments of error, except in so far as they question the proper application of the measure of damages to the circumstances of this case. The thirty-first assignment of error is based upon the refusal of the trial judge to affirm the defendant’s fourteenth point for charge, which was as follows : “ There being no evidence of a separation of items of damages, which exclude those coming from the defendant’s property and the release of damages affecting the plaintiff’s property, and any other claim for damages, the jury is not permitted to guess at such separation, and the verdict must be for the defendant.” The point is not well drawn, and its meaning is by no means clear. But if we apprehend aright the meaning which the point was intended to convey, it does raise a distinction between the damage arising from the acts of the defendant and that arising from other causes, which is well taken, and the ignoring of which may well have resulted in great injustice to the defendant.
The twenty-ninth assignment of error raises the same distinction, in complaining of the refusal of the trial judge to affirm the defendant’s eighth point for charge, which was “ that it is not shown that the defendant is responsible for the sand bar below Laurel Run, which has been accumulating since 1852.” If the filling up of the river bed above the breast of the dam was caused in part by debris carried down by flood water from Laurel Run, or by sediment that naturally came down the stream, or was accumulated in the course of years from sources other than the acts of the defendant, then for damages arising from such other causes, if any, the defendant could not be held liable. It was incumbent upon the plaintiff to furnish evidence from which the jury might conclude with some degree of certainty that the deposit of sediment and the filling up of the river bed to the extent testified by witnesses for the plaintiff, was the result solely of the action of the defendant company. And in this particular there seems to have been a failure of proof. To show merely the fact that there was sediment in the river bed, after the date when defendant