Crum v. Pennsylvania R. Company
| Decision Date | 03 January 1910 |
| Docket Number | 166 |
| Citation | 226 Pa. 151,75 A. 183 |
| Parties | Crum v. Pennsylvania Railroad Company, Appellant |
| Court | Pennsylvania Supreme Court |
Argued October 5, 1909
Appeal, No. 166, Oct. T., 1909, by defendant, from judgment of C.P. Cambria Co., June T., 1907, No. 169, on verdict for plaintiff in case of Charles Crum, Executor of Sylvester Crum, deceased, v. Pennsylvania Railroad Company. Affirmed.
Trespass to recover damages for injuries to land. Before O'CONNOR P.J.
The facts appear by the opinion of the Supreme Court.
At the trial when Charles Crum was on the stand he was asked this question:
Mr Davis:
Mr. Storey: Defendant's counsel object to any testimony from the witness or from the plaintiff which is included within the amendments made by him in this case as being incompetent, in so far as the claim is set forth: in other words, that the statement avers the new channel was made in 1898 and that the amendment is invalid inasmuch as it is only to change the dates so as to bring it within the statute of limitations, and that such amendments cannot be made where the statute interposes.
The Court: The objection is overruled, an exception noted and bill sealed for the defendant company. [1]
Defendant presented these points:
1. Inasmuch as plaintiff is suing for an unlawful trespass, in turning the water into the new channel, about May, 1898, whereby the cause of action then accrued, and having neglected to bring his action until April 3, 1907, the statute of limitation bars a recovery. Answer: Denied. [2]
2. Inasmuch as the amended statement is for the same cause of action, excepting the attempt to change the date to bring it within the statutory period it is invalid and plaintiff cannot recover. Answer: Denied. [3]
3. That the deed of release executed and delivered by Sylvester Crum, to the defendant company, on December 11, 1901, wherein he for himself, his heirs, executors, administrators and assigns, did release and discharge the defendant company from all claims, demands, payments of money and right to compensation for or on account of any and all damages, by reason of the change of the course in the Little Conemaugh river, is a bar to this action, and the verdict should be for the defendant company. Answer: Denied. [4]
6. Under all the evidence in the case the verdict should be for the defendant. Answer: Denied. [5]
Verdict for plaintiff for $7,500, upon which judgment was entered for $5,000, all above that sum having been remitted. Defendant appealed.
Errors assigned were (1) rulings on evidence, quoting the bill of exceptions; (2-5) above instructions, quoting them.
The judgment is affirmed.
H. W. Storey, with him John W. Kephart, for appellant. -- Where the owners of land for a valuable consideration, released a railroad company from all suits, claims, demands and damages by reason of its entry, and the location and construction thereon of its railroad and works connected therewith, such release is a bar to an action by a subsequent lessee of said owners brought to recover damages for injuries caused by an insufficient culvert constructed prior to the execution of the release: Hoffeditz v. South Penna. Ry., etc., Co., 129 Pa. 264.
Harvey Roland, with him Wm. Davis, for appellee.
Before MITCHELL, C.J., FELL, BROWN, MESTREZAT, POTTER, ELKIN and STEWART, JJ.
Samuel Crum, whose executor has been substituted as plaintiff in this action, was the owner of a tract of land on which he maintained a gristmill, with dam and race appurtenant fed from the water of the Conemaugh river. At a point something more than 1,000 feet east of plaintiff's line, the defendant company in straightening and otherwise improving its tracks, found it necessary to change the channel of the river for a considerable distance. This work was done wholly outside the lines of the plaintiff's lands. The plaintiff complains, however, that as a result of the change, both because of the manner in which the new channel was constructed and the character of the land through which it was dug, large quantities of sand and waste material have been carried by the current of the stream from the bottom and sides of the new channel into his milldam and race, to an extent which has practically destroyed both for the purposes they were intended. The action was brought April 3, 1907, for the recovery of damages for the injury complained of. In the statement filed it was averred that the change in the channel of the river was made in 1898, and the claim was expressly stated to be for injuries of a permanent character which have resulted in great depreciation in value of plaintiff's property. While the statement attributed the injury to the change of the channel, it was silent as to when the deposits in the dam and race were first made. The court allowed an amended statement to be filed in which it was averred that they began in May and June, 1901, and continued thereafter until the bringing of the suit. The amendment was made without objection; the defendant pleaded surprise, and when the case was again called defendant had...
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