109 Pa. 22 | Pa. | 1885
delivered the opinion of the court,
After a careful examination of the charge of the learned judge who presided at the trial of this case in the court below, the points of the counsel, and the evidence, we fail to discover
Neither can the seventh assignment be sustained; in view of the facts of this ease the court was right in saying that the defendant was not required to keep the whole dam at the water level if there were waste ways enough to carry off the water under all ordinary circumstances. He was certainly not bound to provide for extraordinary circumstances ; for unusual floods which would at all events sweep over the whole breast of the dam. This is exactly what was ruled in Bell v. McClintock, 9 Watts 119; and in McCoy v. Danley, 8 Har., 85. The court below was reversed principally for its definition of what ib called an ordinary stage of water, as that condition in which it remains longest, excluding the dry season. In this case, Mr. Chief Justice Black cites with approval Bell v. McClintock, in which it was held that one who erects a dam is responsible only for injuries caused by it in times of usual, ordinary and expected freshets, and not for those resulting from a flood, which, as the Chief Justice remarks, “ when it does come, is a visitation of Providence, and the destruction it brings with it must be borne by those on whom it happens to fall.” Besides this, however, the court might safely have said to the jury, that the waste wa\^s were sufficient, and more than sufficient to vent all the water that might be expected in this stream. Here was a little creek, about six feet in width, and to vent this little stream there were no less than three water ways, one of six feet in width, and the other two of ten feet each, the smallest of which if we are to believe the evidence, was sufficient to pass all the water of the stream in ordinary stages. Now how it can be that this mere brook, pouring into the head of a wide pond, should require at its outlet from that pond more than four times its own width for its discharge, is more than we can understand. Nor is it to be forgotten that in times of freshets the whole breast of the dam, some forty-eight or fifty feet, was available as an outlet for the water. On the whole we think the plaintiffs received nothing at the hands of the court of which they can justly complain. The ease was well and carefully tried, and one of the last directions which the court gave to the jury was, that if the defendant had raised the water even the fraction of an inch above the line of 1860, the plaintiffs were entitled to their verdict. This was certainly all they
The judgment is affirmed.