Opinion by
Mr. Justice Stewart,
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, *419each containing as much as two gallons of material used in connection with the batteries employed in the tower house upon his land; that sometimes the jars were carried over upon his land and there discharged, that sometimes they were discharged across the fence, and at other times he had seen the same ma-. terial as that contained in the jars swept under the fence and over upon his land; that the acts thus complained of were being constantly repeated against his protestations, and that it had been habitual up to the bringing of this action. One other witness testified that he had frequently seen these persons emptying the vessels upon defendant’s land. No objection was offered to this testimony on the ground of variance, and it was therefore in the case for what it was worth. It was followed by evidence as to the extent of the loss and injuries sustained in consequence. Maintenance of a nuisance was what was complained of in plaintiff’s statement. The learned trial judge in directing a nonsuit at the close of plaintiff’s ease, used this language : “ This is substantially a claim for damages on real estate and personal property. The allegation is that the injuries to the plaintiff arose from negligence of the defendant. I do not see any evidence in this case to show that the defendants were negligent in the exercise of their right to operate their tower.” This was manifestly a misapprehension of the issue being tried. True, the statement filed in this case averred that the acts complained of had been done negligently, but this did not make negligence a material question; the action being for damages occasioned by maintenance of a nuisance, the question of negligence was not involved. The Pottstown Gas Co. v. Murphy, 39 Pa. 257; Hauck v. Tidewater Pipe Line Co., 153 Pa. 366" court="Pa." date_filed="1893-02-27" href="https://app.midpage.ai/document/hauck-v-tidewater-pipe-line-co-6241313?utm_source=webapp" opinion_id="6241313">153 Pa. 366. The questions in the case were, first, were the continuous hurtful acts complained of committed? and, second, if so, to what extent did they injure plaintiff’s property with respect to its reasonable use ? The learned trial judge having expressed himself as above, concluded with these words: “ I must for several reasons enter a nonsuit in this case.” The only reason for the nonsuit specified was the one we have referred to; the others were not discussed upon the argument, nor have we been able from an examination of the case to discover them. In view of the nature of the action and the statement filed, the reason expressed was wholly inadequate. *420That the acts testified to, if committed, would constitute a nuisance, requires no discussion. Anything which causes hurt, or damage to the lands or tenements of another, or interferes with the reasonable enjoyment of the same is a nuisance. It was suggested, and indeed urged, upon the argument that the evidence failed to establish loss or damage to the plaintiff' within the statutory period prior to the bringing of the action, and that this justified the nonsuit. But the facts will not support this contention. The plaintiff’s claim of loss was made up of many items. True, the evidence did not show with sufficient clearness to warrant a finding, that the most serious loss claimed for was sustained within this period ; but the evidence as to the discharge of the deleterious matter upon plaintiff’s land within"this period to the injury of the herbage and the land itself, was both full and explicit. The amount of damage recoverable is not an element to be considered in connection with a nonsuit; if entitled to merely nominal damages that would be enough to save the plaintiff’s case from such fate. Whether the plaintiff was entitled to a verdict for any amount was for the jury to say under proper instructions from the court. All we now decide is, that the reason assigned for the nonsuit was inadequate, and no sufficient reason therefor has been called to our attention. From all that has been made to appear, the plaintiff was entitled to have the jury pass upon the question of his injury and defendant’s liability therefor.
The exception to this action on the part of the court is sustained, and the judgment is reversed with a venire facias de novo.
Mitchell, C. J., and Brown, J., dissent.