Hoffman v. Mill Creek Coal Co.

• Decision Date: 16 April 1901
• Docket Number: 203-1899
• Citation: 16 Pa.Super. 631
• Parties: Hoffman v. Mill Creek Coal Company
• Court: Pennsylvania Superior Court

16 Pa.Super. 631

Hoffman v. Mill Creek Coal Company

No. 203-1899

Superior Court of Pennsylvania

April 16, 1901

Argued December 4, 1900 [Syllabus Matter]

Appeal by defendant, from judgment of C.P. Schuylkill Co.-1893, No 171, on verdict for plaintiff in case of William Hoffman v The Mill Creek Coal Company.

Trespass for injuries to land caused by deposits of coal dirt. Before Lyons, P. J., specially presiding.

At the trial under objection and exception, the court permitted various witnesses to testify as to the difference between the market value of the property as unaffected and as affected by coal dirt deposited in a creek adjoining the property.

The court charged in part as follows:

[So that your inquiry would be, in the first place, are the injuries to the plaintiff permanent? If they are, then the measure of damages which the plaintiff would be entitled to, would be the difference between the value of his property before it was injured, as complained of, and the value of the property now. You will refer to the evidence in relation to that and give it such weight as you think it is entitled to.]

[You will consider the whole evidence in the case and find first, whether the injuries were permanent; then, as we said before, you will ascertain what the market value of the property was before the injury was inflicted upon it, and what it has been since, by reason of the injury inflicted upon it.]

[If there is no more coal dirt deposited in the stream, will the water wash it out, as the evidence shows it has been doing, in a short time, and free the bed of the stream from it in such a way that no permanent injury will be inflicted upon the plaintiff's property? If so, he cannot recover for permanent damages.]

[It does not matter how long ago this coal dirt was placed upon the banks of the stream, if it found its way down. If it was negligently placed where the storms and floods would carry it into the streams, if it only found its way down in the vicinity of the plaintiff's land within seven years of the bringing of this suit, the statute would not be a bar; all would be liable who had placed the dirt there, even long ago, and if it ultimately found its way into the stream, and then to the plaintiff's, within seven years before the bringing of this suit. That is a question which you will take into consideration, where the dirt came from, how much each contributed towards it, how much the damages sustained by the plaintiff were, and then ascertain how much of it, if any, this defendant should pay.]

Plaintiff presented this point:

4. If the jury find that the defendant has negligently deposited culm, coal, muck or coal dirt in the bed of the Mill creek, or at a point where it escaped into the Mill creek or into any of the tributaries of Mill creek, and that the same was carried down the stream and filled up the Mill creek adjacent to the property of the plaintiff in this case, and thereby caused the creek to overflow its banks and deposit culm, muck or dirt upon property of the said plaintiff, the said defendant is liable for any damages thus occasioned by them to said plaintiff. Answer: Affirmed.

Defendant presented this point:

1. The measure of damages under the evidence in this case is not the difference in the market value as affected and unaffected by the coal dirt in the creek, but the cost of restoring the property itself to the condition it was in prior to the alleged injury. Answer: Refused for the reason stated to you in the general charge.

Verdict and judgment for plaintiff for $ 135. Defendant appealed.

Errors assigned were above instructions, quoting them. Ruling on evidence, quoting the bill of exceptions.

Frederick Bertolette and Guy E. Farquhar, for appellant. -- It was error to permit a recovery on the theory that there was a permanent injury: 1 Sedgwick on Damages, secs. 93, 129; Bare v. Hoffman, 79 Pa. 77; Robb v. Carnegie Bros. & Co., 145 Pa. 324; Lentz v. Carnegie Bros. & Co., 154 Pa. 612; Eshleman v. Martic Twp., 152 Pa. 68; Elder v. Lykens Valley Coal Co., 157 Pa. 490; Gift v. Reading, 3 Pa.Super. 359.

Not only is this the law of Pennsylvania, but it has been held elsewhere in cases of nuisance that the amount of depreciation in market or selling value of premises, which depreciation is caused by the maintenance of a nuisance in the vicinity, is not the measure of damages for maintaining such nusiance: N. K. Fairbank Co. v. Nicolai, 167 Ill. 242; 47 N.E. 360; Aldworth v. City of Lynn, 153 Mass. 53; Prentiss v. Wood, 132 Mass. 486; Wells v. New Haven & Northampton Co., 151 Mass. 46.

C. E. Breckons, with him E. A. Beddall, for appellee, cited Seely v. Alden, 61 Pa. 302.

Before Rice, P. J., Beaver, Orlady, W. W. Porter and W. D. Porter, JJ.

OPINION

RICE, J.

On or near the banks of Mill creek are several collieries and washeries, and amongst them one operated by the defendant company. On the trial of this case evidence was given which tended to show, that in conducting its business the defendant deposited culm and coal dirt upon its premises in such a way that naturally, and as was to be expected, it was carried into the stream and thence down the same, until it, in connection with similar deposits brought from other collieries, raised the bed of the stream at or near the plaintiff's premises from two to four feet, according to the varying testimony of the witnesses.

The plaintiff claims to be the owner of three contiguous lots, upon each of which there is a dwelling house. To part of this land he showed title by deed, and to the easternmost lot, the one nearest the creek, he claimed title by adverse possession. It is argued that his title by possession extended to the middle of the stream, but this contention is not sustained by his testimony. For a part of the distance the lot of H. E. Paul lies between his lot and the creek, and for the remainder of the distance a stone wall separates his lot from the creek. He testified unequivocally that his claim and possession eastwardly extended to the Paul lot and the stone wall, and there is no evidence that they extended further so as to embrace any part of the bed of the creek.

The plaintiff showed that in the freshets which occurred in January and February, 1893, the stream overflowed its banks and deposited in his cellars and on the surface of his lots considerable quantities of culm and coal dirt.

He also claims that since 1890, or thereabout, his cellars have been damp, and at times have had water in them, and he asked the jury to infer from other testimony given by him and his witnesses that these latter conditions were caused by the raising of the bed of the stream; in other words, that, as a result of the deposit of coal dirt, the stream is, in ordinary high water, above the level of his cellars, and that when it is raised by rains the water soaks through the soil into his cellars. The evidence adduced in support of this latter claim is not as clear and satisfactory as might have been furnished if the fact be as he claims. We cannot say, however, that it was not sufficient to carry the question to the jury, and in our consideration of the questions of law raised by the assignments of error we shall assume that their verdict has established the fact that the conditions last described were caused directly or indirectly by the raising of the bed of the stream, and that they will continue or recur as long as the bed of the stream remains at the same level.

We shall consider first and separately the plaintiff's injury caused by the washing of culm and coal dirt upon his land in the freshets of 1893, because there is a distinction between a direct trespass and a consequential injury resulting from something done or maintained off the plaintiff's land which may or may not continue. The general doctrine is, that where injury is caused by trespass on the plaintiff's land, since the defendant cannot remedy the wrong without another trespass, the injury is to be treated as inflicted once for all and full compensation is to be recovered in one action: 1 Sedg. on Damages, sec. 92, p. 128. But it does not necessarily follow that the measure of damages for the injury caused in 1893 was the difference between the market value of the lots before the coal dirt was deposited on them and their market value as affected by that deposit if allowed to remain. Prima facie the measure of damages would be the cost of removing the deposits and putting the premises in as good condition as they were before, if that could be done, and compensation for the total or partial loss of the use and enjoyment of the premises in the mean...