61 Pa. Super. 269 | Pa. Super. Ct. | 1915
Opinion by
The plaintiff and defendant were the owners of contiguous lots in the Borough of York. They were at variance in regard to the location of their division line. The trespasses alleged grew out of the defendant’s assertion that the roof of the building on the plaintiff’s land at the rear of the lot overhung his lot and discharged water in large quantities thereon. The acts charged against the defendant in the statement of claim are: (1) that he removed spouting from the plaintiff’s building; (2) that he closed four of the windows on the side of the building next to his lot by nailing boards across them; (3) that he caused rain water to flow onto the plaintiff’s lot by removing a board from the plaintiff’s building, thereby permitting the water to flow onto the plaintiff’s premises; (4) that he broke windows in the plaintiff’s building; (5) that he pushed down a partly constructed brick wall along the.line of the plaintiff’s lot. These trespasses are charged to have been committed at different times between September 11, 1912, and April 21, 1913. The defendant claimed that the plaintiff’s eave-spouting was on his premises and that it constituted a nuisance in discharging water from the roof of the plaintiff’s building onto his lot, and evidence was offered to support that allegation in justification of his conduct in removing the spouting. The first and second assignments of error relate to the charge of the court and the answer to the defendant’s fourth point bearing on the
In the offers contained in the third and fourth assignments the defendant sought to show that the plaintiff drained the water from the roofs of her buildings onto his land; that he complained to her; that she took no effective means of preventing the water from so running; that the removal of the bottom board of the plaintiff’s shop of which the plaintiff complained afforded the most practicable means of disposing of this water and the one which did the least injury to the plaintiff. That an owner has no right to accumulate and carry the water from the roofs of his house onto the lot of an adjoining owner is clear: Gould v. McKenna, 86 Pa. 297; Rielly v. Stevenson, 222 Pa. 252. If water was so turned onto the defendant’s lot the plaintiff could not object if the injury was obviated in a manner most practicable and doing the least injury to her. The defendant had the right to introduce evidence to support his allegation that the water from the buildings was unlawfully discharged onto his lot and that he adopted the means most available and least prejudicial to the plaintiff in turning it back onto her premises.
•The claim for damages for throwing down the brick, wall built by the plaintiff was withdrawn by the court from the consideration of the jury on the ground that there was a dispute as to the ownership of the land on which the wall was located and the plaintiff’s title had not been established. The wall was broken down on April 21, 1913. All of the other trespasses set forth in the declaration occurred a considerable time before that. The controversy about the Avail having been taken out of the case the evidence with reference thereto had no retrospective effect and was not admissible for the purpose of establishing either compensation or punitive damages. The evidence included in the ninth assignment could have no bearing on the case except as applied to the brick wall and was not relevant- on that subject inasmuch as the whole controversy about the wall was eliminated. The plaintiff could not recover compensatory damages under the ruling of the court and of course could not recover exemplary damages as to that branch of the case. The effect of this evidence under the charge of the court would be to aggravate the defendant’s conduct and influence the jury in estimating the exemplary damage to which the plaintiff might be entitled. As the plaintiff had not established her right to locate the wall on the ground where it was built it was a matter of no consequence whether the defendant threatened to tear it down again if it were rebuilt. It must first be made to appear that she had a right to build before the defendant could be censured for objecting to it. He claimed to own the land and if so had a right to remove the wall if that could be done without a breach of the peace. The
We think the learned trial judge was in error in the respects considered in this opinion.
The judgment is therefore reversed with a venire facias de novo.