46 Pa. Super. 594 | Pa. Super. Ct. | 1911
Opinion by
In Bentz v. Armstrong, 8 W. & S. 40, Kennedy, J., speaking of the rights and duties of adjoining owners of lots in towns and cities with respect to surface water, said: “It is of great importance that the water on each lot, arising from rain or other causes, should be conducted by the owner or occupier thereof, if he wishes to have it removed, directly from it to a sewer or other place appropriated for the receipt and discharge of the same, and not be turned or led on to an adjoining lot, without the consent of the owner; and' it appears to me to be the duty of the owner of each lot, if he improves it, to do it in such a way if practicable as to lead and conduct the water that happens to fall or be on it, off in the way just mentioned, without regard to the original formation of the surface of his lot. If the rear of his lot should be elevated so much above the front that he cannot conduct the water to the rear, so as to discharge it into a sewer or other appropriate place, then he ought to bring it to the front of his lot, where he must of necessity have some place to discharge it, without throwing it on his neighbor’s ground.”
“Some things of course he may not do. He may not proceed negligently so as to do unnecessary damage to others. But so far as he acts upon his right to protect his enjoyment of his own property, any incidental loss to his neighbor is damnum absque injuria. It is clearly settled, however, first, that he may not obstruct a natural channel for the flow of water, or a channel that has acquired the character of an easement; and, secondly, he may not gather surface water into a body and discharge it on the adjoining land. His right is to shut out the invading water, as a common enemy, for the protection of his own land.” So far as liability for flow of surface water was concerned, the true test was whether the defendants proceeded negligently so as to do unnecessary damage to the plaintiff, not simply whether the increased flow was preventable, by the defendants improving their lot in some other manner. The difficulty of separating the damage, if any, consequent upon the defendants’ improvement of their property in a nonnegligent manner from the damage consequent upon the construction of their eaves troughs and water spouts in such manner as to cause the roof water, carrying
We also sustain the first assignment of error. The point, taken as a whole, did not assume that the existence of the deposit of earth against the sills of the plaintiff’s house was due to his negligence, but requested the court to say that if the jury found that the plaintiff negligently permitted it to be there, and that the decay of the sills was caused by his negligence in that particular, he could not recover damage for the decay of the sills. It seems to us that the point was permissible under the evidence and should have been affirmed.
The mistake, if mistake there was, in the court’s attempt to summarize the testimony of the plaintiff’s witnesses as to the condition of his cellar before the defendants built (fourth assignment), undoubtedly would have been corrected if the defendants’ counsel had called the court’s attention to it at the end of the charge. In the absence of such request, it is not, of itself, sufficient ground for reversal.
The request for binding instructions (fifth assignment) upon the ground that the plaintiff failed to erect on his own premises a countervailing obstruction to the flow of surface water was properly refused. He might have dammed it back but he was not bound to do so, if it was tortiously cast on his land by the defendants.
The case was for the jury and in the main was well tried, but for the reasons suggested it must go back for ' a retrial.
Judgment reversed and venire facias de novo awarded.