Fell v. Bennett

• Decision Date: 05 October 1885
• Docket Number: 83
• Parties: Fell et al. v. Bennett et al
• Court: Pennsylvania Supreme Court

5 A. 17

110 Pa. 181

Fell et al. v. Bennett et al

No. 83

Supreme Court of Pennsylvania

October 5, 1885

Argued May 20, 1885

ERROR to the Court of Common Pleas of Lancaster county: Of January Term 1885, No. 83.

Trespass by Charles Fell and Rachel Fell against Edwin Bennett, Josiah P. Lee and Samual T. Lee, to recover damages accruing from January 1st, 1874, to the time of bringing suit, May 17th 1881, sustained by reason of defendants having raised their dam on property adjoining the plaintiffs' and backing the waters of the Octoraro Creek upon the lands of the plaintiffs, and refusing and neglecting to remedy the same. Plea, not guilty.

On the trial, before PATTERSON, J., plaintiffs first proved title in themselves in common to the land alleged to have been damaged, Charles Fell's interest being three quarters and Rachel Fell's one quarter. Plaintiffs then offered in evidence the record of a former suit brought on August 14th 1877 by Charles Fell against the same defendants in which he recovered $16 for the flooding of his lands by the raising of defendants' dam in the summer of 1876, at which trial the court charged the jury that plaintiff was only entitled to recover three fourths of the damage. Objected to by defendants as not being the same cause nor between the same parties.

Objection overruled and record admitted, but with the following qualification: "I don't think it would be received under the present condition of things. I don't see any difficulty about admitting the evidence for what it is worth, to that extent, but we don't think, under the pleadings, it will help the plaintiffs any; but we will have to admit it to see whether, under the narr., we can try this case. It is only this record that permits us to know that one of the parties, one of the plaintiffs, has already recovered damages up to a certain time -- up to September 3d, 1878. Now, stopping with that time, this record gives the court record information that one of these plaintiffs recovered damages before for the same grievance, that they have laid in their narr., and it shows that the other joint plaintiff has never recovered; at least, there is an absence of proof of that kind. We can't permit you to give any testimony as the record stands, because we would not know how to divide and assess the damages -- one party going back to 1874 and the other party to 1877 or 1878; and without any explanation or averment on the face of the narr. as to the time. I don't see what else the court can do, but to admit this record for what it is worth; but I don't see how that will aid you as plaintiffs; but we will admit this record."

Plaintiffs then offered in evidence a draft of their property, and the defendants' mill dam, showing the location of the nuisance, and proved by the surveyor who prepared it. Objected to by defendants for the reason that it was a record in the former suit and is not admissible under the declarations and pleadings in this suit. Objection sustained and offer excluded. Exception. (First assignment of error.)

Plaintiffs further offered to prove by the testimony of Charles Fell, "that the witness is one of the plaintiffs in this case; that he is the owner of the undivided three fourths of the tract of land on Octoraro Creek, in Little Britain township, Lancaster county, for injuries to which this suit is brought; that Rachel Fell is the owner of one undivided fourth; that it lies on the west side of the Octoraro Creek, extending along the creek between a quarter and half-a-mile; that the defendants have mills on said stream below the property of the plaintiffs; that the defendants have a mill-dam on the stream, and that the breast of their dam is a quarter to a half-a-mile from the land of the plaintiffs; that the witness came to live on this farm, now occupied by him, over 40 years ago, in the lifetime of Benjamin Fell, the devisor of the title; and that Benjamin Fell was in possession of the land in his lifetime, and that the possession of Benjamin Fell was succeeded by the possession of these plaintiffs. That, when the witness came into the possession of the property, the mill was supplied by water from this dam, and was run by Amor Carter, the owner, for a great many years; that when Carter went to make a dam 35 or 40 years ago, it was like a pile of large stones put up there; that that was 35 or 40 years ago; that the dam that was there was washed away frequently; sometimes almost leveled by floods, and sometimes gaps made through it, that the property came into the posession of these defendants -- the mill property; that they built and raised the breast of the dam higher than it had ever been before; that this was done in the year 1876; that in 1876 the witness served a notice on the defendants that their dam was too high; that in that year the water was backed further up the stream than it ever had been before; that the water was raised on the land of the plaintiffs about two feet higher than it had been before the dam was raised; that the water was backed farther on the plaintiffs' land; that the dam has continued, up to the time this suit was brought, in its raised condition, and that the water has continued to be backed on the plaintiffs' land, up to the time of the bringing of this suit, causing damage to these plaintiffs; to show the amount of the damage and the extent of it; to show the extent of the injury, and the amount of land affected by it."

Objected to by the defendants for the reason that "it is evidence in support of an alleged claim for damages to the property of Charles and Rachel Fell, the plaintiffs in this case. The record of a former trial, in which Charles Fell, one of the present plaintiffs, was plaintiff, Rachel Fell, not being joined as plaintiff, now in evidence, shows that a verdict was obtained and judgment entered thereon, in his favor, against these same defendants, for damages alleged to have been sustained by Charles Fell, by reason of the grievances complained of in the pleadings in this case, and covers the same period." Objection sustained and offer excluded. Exception. (Second assignment of error.)

Plaintiffs then offered to withdraw the record previously admitted in evidence. Objected to by defendants because the record was admitted after argument on their part, was read to the jury, and was now part of the case. Objection sustained. (Third assignment of error.)

Plaintiffs then made the following offer: "The court having admitted testimony that Charles Fell and Rachel Fell, the plaintiffs in this action, have been the owners of the land for injury to which this suit is brought, for upwards of 30 years, and in possession during all that time, and still in possession, we offer to prove that the defendants erected and built a dam below the land of the plaintiffs, on the Octoraro Creek, which runs through the land of the plaintiffs; and that, in 1876, the defendants raised their dam some 18 inches, and raised the water in the creek, and backed the water on the plaintiffs' land for the full distance of a half-a-mile through the land of the plaintiffs, thereby...