Freeland v. Pennsylvania Railroad Co.

• Decision Date: 07 July 1870
• Parties: Freeland <I>versus</I> The Pennsylvania Railroad Co.
• Court: Pennsylvania Supreme Court

66 Pa. 91

Freeland versus The Pennsylvania Railroad Co.

Supreme Court of Pennsylvania.

May 21, 1870.

July 7, 1870.

May 21st 1870.

Before THOMPSON, C. J., AGNEW and SHARSWOOD, JJ.

Error to the Court of Common Pleas of Dauphin county: No. 84, to May Term 1870.

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S. J. M. McCarrell and J. W. Simonton (with whom was D. Fleming), for plaintiff in error.—The evidence rejected would have tended to show that the flood of 1865 was not extraordinary: Railway Co. v. Gilleland, 6 P. F. Smith 453. There was evidence of which to predicate plaintiff's 2d point, and it should have been submitted to the jury: Trovillo v. Tilford, 6 Watts 468; Fish v. Brown, 5 Id. 441. The measure of care to be exercised by the defendants was for the jury: McCully v. Clarke, 4 Wright 406; Penna. Railroad Co. v. Ogier, 11 Casey 71. The charge, as a whole, was calculated to mislead; this is a ground for reversal: Reeves v. Railroad, 6 Casey 454. Where there is any evidence of a fact, it should go to the jury: Stewart v. Wilson, 6 Wright 450; Stafford v. Henry, 1 P. F. Smith 518; Beatty v. Ins. Co., 2 Id. 456; Wilt v. Snyder, 5 Harris 77; Elder v. Reel, 12 P. F. Smith 308.

L. W. Hall (with whom was F. Jordan), for defendants in error.—Floods such as that of 1865 are visitations of Providence, the results of which must be borne by those on whom they come: McCoy v. Danley, 8 Harris 85; Lehigh Bridge Case, 4 Rawle 9; Bell v. McClintock, 9 Watts 119; Pitts., Fort Wayne and Chicago Railroad Co. v. Gilliland, 6 P. F. Smith 445. The damages were consequential: Del. Div. Canal Co. v. McKeen, 2 P. F. Smith 117; Monon. Nav. Co. v. Coons, 6 W. & S. 101; Susq. Canal Co. v. Wright, 9 Id. 9; Henry v. Pitts. and Allegheny Bridge Co., 8 Id. 85; Watson v. Pitts. and Con. Railroad Co., 1 Wright 469. The repairs to the dam having been done under the requirements of the Act of May 1857, there can be no recovery for such damages.

The opinion of the court was delivered, July 7th 1870, by AGNEW, J.

Some of these assignments of error rest upon questions not in the cause, and may be dismissed by stating what the controversy was. The injury to the plaintiff's property, as declared upon and shown by the evidence, was caused by the overflow of Duncan's Island, in the Susquehanna, in the extraordinary flood of 1865. It was alleged that the overflow was increased by raising the Clark's Ferry Dam, in the year 1858, by the Pennsylvania Railroad Company, after the purchase of the main line of canals and railroads under the Act of 16th May 1857, Pamph. L. 519. The real injury arises therefore from the reflux of the water caused by the increased height of the dam, and not from the manner of constructing it, or any want of skill or care in rebuilding. All questions as to its structure and skill and care in rebuilding, are therefore out of the case, and it falls back upon the right of the company to elevate the dam. This disposes of the 6th, 7th, 8th, 9th and 11th assignments of error. And even the right to raise the dam is scarcely a question, for the weight of evidence made it pretty clear that the dam was not raised higher than the state had established it. But, granting the fact of increased height, the company had ample authority, whether the conclusions be drawn from the main object of the state in the sale of the works or the special terms of the law. The great purpose of the Commonwealth — to advance the agriculture, commerce and manufactures of the state, and to unite its natural divisions in a common interest by means of navigable streams and canals — is forcibly expressed in the preamble to the Acts of 11th April 1825, Pamph. L. 238, and 25th February 1826, Pamph. L. 55. The Act of 1857, passed in the same spirit, was intended to preserve to the people of the state these valuable interests. It therefore bound the purchasers or assigns "to keep up in good repair and operating condition the line of said railroad and canal, extending from Harrisburg to Philadelphia," &c., and declared it to be "the true intent and meaning of this act that the said sections of canal and railroad, and every part thereof * * * * shall be and remain a public highway, and kept open and in repair by the purchaser or purchasers thereof, or assigns as such, for the use and enjoyment of all parties, desiring to use and enjoy the same." It was the undoubted intention of the legislature that the purchasers of the main line of the public works should hold and use them for the same uses and objects for which they were created, and therefore to bring them up to their highest condition of utility and prosperity. Not only was the duty thus enjoined on the purchaser, but ample powers were given to perform it. It is declared in the 3d section that "it shall be lawful for the purchasers, or their assigns, to straighten and improve the said Philadelphia and Columbia Railroad, and to extend the same to the Delaware...