Good v. Mylin
| Decision Date | 19 May 1848 |
| Citation | 8 Pa. 51 |
| Parties | GOOD <I>v.</I> MYLIN. |
| Court | Pennsylvania Supreme Court |
May 19. GIBSON, C. J.
The cause of action set out in the first count of the declaration, is an injury from flooding by erecting a dam of a particular height and length across the stream of a creek; in the second, it is an injury from flooding by an additional dam erected, "higher than the same was used or ought to be, on and across the same stream of water." In cases of the sort, the injury is a consequence which must be shown to have been produced by a specific cause; for it is apparent, from the precedents, that it would be too general to lay the flooding as a consequence, without more; and if the plaintiff is bound to state the cause of it, he is bound to prove it as stated. The rule is, that the allegata and the probata must agree; and as the proof must be confined to the point in issue, it excludes all evidence of collateral facts which afford no reasonable inference as to the principal matter in dispute: 1 Greenl. Ev.s. 51, 52. 448. No allegation, it is said in 1 Stark. Ev. 433, which is descriptive of that which is legally essential to the charge or claim, can ever be rejected; because it would mislead the adverse party, and the court would not be sure that the facts had been found which were essential to support its judgment; and as the proof would be more general than the allegations, it would no longer agree with the cause of action laid. The issue, taken in this instance, was on a charge of flooding by means of a dam erected across the stream, of which alone the defendant had notice by the pleadings. The proof admitted was, that the water had been raised by obstructing two lateral sluices or gullies through the left bank, which was no part of the dam. These sluices had led the water out of the edge of the stream, round the dam, from a pool considerably above it, and returned it into the natural channel, below the defendant's mill. There was therefore, a decisive variance between the allegata and the probata, for which the evidence ought to have been rejected. The closing of the sluices probably produced the mischief; for there was evidence that the additional dam was lower than the other, and would not have raised the water so high in the same circumstances.
A graver question arises on the instruction that the jury were at liberty to compensate not only the injury laid, but the trouble and expense of establishing its existence. I lament that the general principle was recognised by this court, in Wilt v. Vickers, 8 Watts, 235, and Rogers v. Fales, 5 Barr, 159; for, to overrule decisions so recent and direct, must cast a doubt on the stability of judicial decision. Yet it is better to eradicate an erroneous principle while it has scarce taken...
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