54 Pa. Super. 529 | Pa. Super. Ct. | 1913
Opinion by
This action of trespass was brought to recover damages for injuries done by the defendants to the plaintiff’s water power and land, by reason of their depositing culm, muck and coal dirt in an upper part of a stream which flowed through the plaintiff’s property, and which accumulated in such quantities in the plaintiff’s dam and mill race as to seriously interfere with the natural flow of water, and diminish the power formerly had at the mill. The plaintiff acquired title in 1892 to a tract of thirty-two acres of land on which were erected a grist and sawmill. In 1905, the defendants began washing coal at their mining operation higher up the stream and the damages claimed in this action are alleged to have been caused by the excessive amount of debris they discharged into the stream. The trial in the court below extended through eleven days and the record exhibits 750 pages of testimony. There are nineteen assignments of error presented, thirteen of which are to answers to points submitted for charge, four to the charge of the court in whole or in part, and to the admission to evidence.
It appears by the record that the prior owners of this property received as damages for permanent injury to the water power of this grist and sawmill, under an award against the Lehigh Coal & Navigation Company, the sum of $18,000, and costs, which was paid November 16, 1898, and further, that in an action begun December 23, 1898, in which the declaration claimed the destruction of the property of which the land described in this case was a part for the same causes,
The uncontradicted testimony was that the present defendants began operating the colliery of which the plaintiff complains in October, 1905, so that the evidence was rightly confined, to events subsequent to that date. The confusion of dates, of ownership of the property, and -former trespassers made it very difficult to clearly
It appears that the dam was 1,500 feet in length, 128 feet wide at the breast, sixty feet wide at its head and six feet in depth. The plaintiff was asked, “Have you made an estimate based on the actual cost of cleaning out the dam? Have you figured upon the quantity of dirt that is in the dam?” and replied, “I cannot make an estimate, I cannot figure it out.” And again, “From the condition of things there, the amount that is in there, and the coal dirt that is in the race and in the dam and is coming in as you have stated, can you remove that dirt from there so as to run the mill?” and answered, “We can remove it so much that we can run the mill, we cannot run the mill over two days no time.” “Q. Can you tell us the condition of the bottom of the
The loss claimed on account of substituting the sieve system for the roller process could not be considered by this jury, when this change was admittedly made in the mill several years prior to these defendants operating the colliery. The gas engine was installed in 1908, but as the plaintiff testified it was to furnish power to a sawmill that had been standing idle from causes which existed prior to 1902, and the necessity for its installation existed years before the defendants operated their plant.
The cause of the erosion of the turbine wheels, the necessity for purchase of new ones, their value and the value of the old ones, even if separated from the item of permanent injury to the land was largely conjectural.
The permanent damages claimed were for the value of five acres of the farm, and as he modified his claim on the trial by claiming all damages as permanent in character, they were impossible of ascertainment for the reason that there was no reasonable separation of the causes and conditions that existed when the defendants started their colliery. It is but proper to add that every opportunity was given the plaintiff through suggestions of the trial judge to specify in an intelligible way the actual damage claimed and assign the causes for them.
The plaintiff’s fifth point was as follows: “In an action to recover damages for the pollution of a stream by coal dirt, the measure of damages is the cost of removing
The plaintiff made out a technical case of trespass but nothing more; having failed to furnish proof- of any special damage incident to this action he must be content with nominal damages. The assignments of error are overruled and the judgment is affirmed.