| Pa. | Jul 1, 1857
The opinion of the court was delivered by
There is no Act of Assembly authorizing the Court of Common Pleas of Northampton county to enter judgment
We are to take it as settled by the verdict, that the two public highways were in existence before the mill-races were dug across them — that the said races were dug for the benefit of the mill, by the former owner of it, and that they are continued by the defendant below for the same purpose. We are also to assume that the bridges have heretofore been kept in repair by the former owners of the mill. From these facts an agreement to keep them in repair may be implied. A man who owns the soil on which the public have a highway has a right to enjoy his property in every way that may promote his interest or convenience, so that he takes care not to injure the public easement. “Sic utere tuo ut alienum non Icedas,” is the maxim which applies in such cases. He may cut a passage across the road for the purpose of draining his land, or leading water to his mill, because the land is his own and he may use it for all legitimate purposes. But, as he has no right to injure the public easement, he is bound, in order to preserve that right, not only to construct bridges over the ditches, where they cross the highways, but also to keep them in repair. The duty of keeping such bridges in repair is as imperative as the original obligation to construct them. He could not be permitted to cut the ditch without erecting the bridge. He is bound to keep the bridge in repair, “because he erected it for his own benefit.” “Pur eeo que il ceo erect pur son benefit demesne:’’ Bowbridge and Channel Bridge v. Le Prior de Stratford, 8 Ed. 2, cited in Rolle’s Abr. 363, tit. Bridges; Perley v. Chandler, 6 Mass. Rep. 454; Dygert v. Schenck, 23 Wend. 446. It follows from these principles that a subsequent owner of the land, who continues a watercourse across a highway, for the use of his mill, and thus renders a continuance of the bridge necessary, is liable for the repairs of the bridge. There was, therefore, error in giving judgment for the defendant on the point reserved.
The Act of 6th April, 1802, 3 Smith’s Laws 512, imposing a penalty for committing a nuisance in the highway, has never been construed to supersede the punishment by indictment at common law: 11 S. & R. 345. The Act of 13th June, 1836, sec. 68, expressly preserves the latter remedy, in addition to the other. But those proceedings are designed more as punishment for offences than remedies for the injuries caused by them. They do not therefore preclude the public from repairing the highway in the first place, and then bringing an action to recover the expenses of such repairs against the party who is liable for them. It is the duty of supervisors to keep the roads and township bridges
But it is supposed by the defendant in error that the form of the action, and the want of jurisdiction in the justice, present objections to the plaintiff’s recovery. It must be remembered that when the cause came into the Common Pleas, by appeal, the parties went to trial without objection, on a declaration for “ money had and received,” without any regard to the true nature of the action. Such a proceeding is a waiver of all objections either to the form of the action, or to the jurisdiction of the justice. It Í3 in the nature of an amicable action, with an agreement to waive all such questions, and to try the case on its merits.
We perceive no reason why the plaintiff in error should not have judgment upon the verdict. But, as the defendant below may have grounds for a writ of error, we do not enter the final judgment against him here; but reverse the judgment for the defendant below, and remit the record for further proceedings according to law.
Judgment reversed and procedendo awarded.