Fell v. Bennett
Decision Date | 05 October 1885 |
Docket Number | 83 |
Parties | Fell et al. v. Bennett et al |
Court | Pennsylvania Supreme Court |
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:
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,
Objected to by the defendants for the reason that 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...
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