214 Pa. 415 | Pa. | 1906
Opinion by
The action here was trespass, and the complaint as set out in the statement was, that the defendant and its servants had negligently permitted vitriol, acids and other deleterious matter to flow from the tower house upon the line of defendant’s roadway, used for operating automatic signals, and from certain holders and wells along said roadway, over and upon the adjacent land of the plaintiff, thereby poisoning the herbage growing thereon, and causing the death of certain of plaintiff’s horses and cattle, and greatly damaging said land for agricultural purposes. It was complained that this condition of things thus created and maintained by defendant was a nuisance. On the trial of the case, little account seems to have been taken of the specific averments in the statement, and the difference between the allegata and the probata is rather marked. There was not a word of testimony in support of the averment that defendant bad any holders or wells along the line of its roadway, or that there had been a flow of any kind from its tower house upon the land of plaintiff. The plaintiff testified that he had seen persons whose employment was in or about the tower house, discharging the contents of large jars or vessels,
The exception to this action on the part of the court is sustained, and the judgment is reversed with a venire facias de novo.