Darlington v. Painter

• Decision Date: 18 April 1848
• Citation: 7 Pa. 473
• Parties: DARLINGTON <I>v.</I> PAINTER.
• Court: Pennsylvania Supreme Court

7 Pa. 473

DARLINGTON v. PAINTER.

Supreme Court of Pennsylvania.

April 4, 5, 1848.

April 18, 1848.

April 4, 5.

IN error from the Common Pleas of Chester.

Lewis and J. M. Read, for plaintiff in error.—The motive or intent of the act done, if lawful in itself, cannot be inquired into. This is shown by Oakes v. Wood, 2 Mees. & Welsb. 791, where, in trespass for an assault, on the replication de injuria, it was held the motive of the act could not be inquired into, but simply whether there was an excess of violence in lawfully ejecting plaintiff from defendant's premises. This was also decided in Mayor v. Randolph, 4 Watts & Serg. 514, and 7 Term Rep. 650; Lambert v. Hodgson, 1 Bing. 317; Price v. Peek, 1 Bing. N. C. 380; Greene v. Jones, 1 Saund. 300 a; Dye v. Leatherdale, 3 Wils. 20; Taylor v. Cole, 3 Term Rep. 292; S. C., 1 H. Bl. 555; Gundry v. Feltham, 1 Term Rep. 336; Groenvelt v. Burwell, 1 Ld. Ray. 454; Crogate's Case, 1 Sm. Lead. Ca. 53. The right is traversed entirely, whereas if it was intended to set up an excess, that should have been replied. In that case, the action was misconceived, as we could not be trespassers ab initio, according to the familiar principle of the Six Carpenters' Case.

The intention to use it for an unlawful purpose is clearly no ground of action, and it is conceded no unlawful use had been made at the time of suit brought. But it becomes a question of grave importance whether the manner of user alone is a cause of action. This is directly raised. It is the well-settled law of water rights, that an injurious consequence must follow the change of the manner of user to give a cause of action. A change of the object to which the power is applied is immaterial, where no more is required and used than was granted: Whittier v. Cocheco, 9 N. Hamp. 454; Bracegirdle v. Peacock, 10 Jurist, 9. So it is with respect to the prior use of water before it is turned into a ditch, in the same quantity and manner as was accustomed.

P. F. Smith and Meredith, contrà.—A title by prescription gives a right similar to a grant, and if the user be confined, and particular, it is like a grant of such particular right of use: 1 Greenl. Ev. s 71. But the question on the pleadings is plain: a general right is set up, and a particular one proved — the defendant, therefore, failed in the issue joined: Kirkham v. Sharp, 1 Whart. 323; Jamilson v. McCredy, 5 Watts & Serg. 129, are illustrations of this rule. The importance is shown from the consequence that a recovery by defendant on such a plea, concludes the plaintiff on the right set up in the plea. It is also a familiar principle, that the evidence must cover the whole right set up: Stark. Ev. tit. Water-course; Saunders v. Newman, 1 Barn. & Ald. 258; Strickler v. Todd, 10 Serg. & Rawle, 71; Bealey v. Shaw, 6 East, 208; Baldwin v. Calkins, 10 Wend. 167; Drewell v. Towler, 3 Barn. & Ad. 735.

April 18. GIBSON, C. J.

The owner of a water-course through the land of another, whether to lead the stream to his ground, or discharge it, may enter to remove obstructions from natural or artificial causes; and the defendant had a clear right from adverse user for twenty years, to enter on the land of the plaintiff below him, in order to remove the earth and mud deposited in the trench, and to fit it to discharge the surplus water of irrigation. It may even be true, that he might have rightfully entered, though the user were to be changed from irrigation to water-power, provided the flow continued to be exactly the same; but...