Jessup v. Loucks

• Decision Date: 03 July 1867
• Citation: 55 Pa. 350
• Parties: Jessup <I>versus</I> Loucks.
• Court: Pennsylvania Supreme Court

55 Pa. 350

Jessup versus Loucks.

Supreme Court of Pennsylvania.

May 20, 1867.

July 3, 1867.

May 20th 1867.

Before WOODWARD, C. J., THOMPSON and AGNEW, JJ. STRONG and READ, JJ., absent

Error to the Court of Common Pleas of York county.

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J. Gibson, W. C. Chapman, J. Evans and J. L. Mayer, for plaintiff in error.—The purchase of the surplus water at dam No. 1, of the Slack Water Navigation Company, did not carry the right to the possession, use, and rehabilitation of the work for the private benefit of the purchaser or his heirs, after the public use had wholly ceased, and become impossible. The charter of this company conferred no absolute estate in the land occupied. Haldeman v. Pennsylvania Railroad Company, 14 Wright 436; Corwin v. Cowan, 12 Ohio (N.S.) 629; National, &c., Co. v. Donald, 4 H. & Nor. 8; Varick v. Smith, 5 Paige 137; Harris v. Thompson, 9 Barb. 350; Hooker v. The Turnpike Co., 12 Wend. 473; Dunham v. Williams, 36 Barbour 136; Ridge Turnpike v. Stoever, 6 W. & S. 380; Fisher v. Coyle, 3 Watts 407; Lanc. Turnpike v. Rogers, 2 Barr 115; Branson v. City of Philadelphia, 11 Wright 331; Southwark Co. v. Same Id. 320; Com. ex. rel. Cass, &c., v. Penn. Railroad, 1 P. F. Smith 351; Bissel v. Railroad Companies, 22 N. Y. 258; Commonwealth v. Erie & N. E. Railroad Co., 3 Casey 339. The title to the surplus water is indefeasible, but the existence of such surplus is contingent on the exercise of the franchise of carrying on the works of the navigation. A contingent or defeasible interest may be made the subject of grant or descent, but this does not make it absolute; Chase v. Sutton Manufacturing Co., 4 Cush. 152; 1 Hillard on Torts 687; Pittsburg v. Scott, 1 Barr 310; Lambertson v. Hogan, 2 Id. 24; Brown v. Commonwealth, 3 S. & R. 276; Commonwealth v. Church, 1 Barr 110; Buckingham v. Smith, 10 Ohio 288; Mifflin v. Railroad Co., 4 Harris 182.

The corporation was created in this as in other cases, to have the exclusive charge of its works in the nature of a trust. It alone could possess and control them to the exclusion of every subordinate or dependent interest. Erie Canal Co. v. Walker, 5 Casey 170; Schuylkill Nav. Co. v. M'Donough, 9 Id. 75; Susq. Ca. Co. v. Bonham, 9 W. & S. 28; Spear v. Albion, 8 Harris 200; Fisher v. Coyle, 3 Watts 407; Plymouth Railroad Co. v. Colwell, 3 Wright 339; Commonwealth v. Erie & N. E. Railroad Co., 3 Casey 339; Rockdale Canal v. Radcliffe, 18 Ad. & E. (N. S.) 287, 83 E. C. L. R. 287; Dunham v. Williams, 36 Barb. 162.

The death or inability of the company contemplated in this agreement, would merely have restored the plaintiff's father to his rights before the works were erected.

A defendant in an action of tort, cannot shield himself behind the greater wrongs of his predecessors in wrong-doing. The Court reduced the question for the jury to a measuring cast between the amount of injury occasioned by the defendants' dam, and by that of the Navigation Company; and held that it was unnecessary for the defence to show any title under the company, on the idea that the plea of not guilty put in issue everything stated in the declaration: Howard v. Peete, 2 Chitty 315, 18 E. C. L. R. 653; Dukes v. Gosling, 1 Bingh. N. C. 588, 27 E. C. L. R. 776; Churchill v. Hunt, 1 Chitty 485, 18 E. C. L. R. 267; 2 Chitty Pleading 621, note m.; 1 Id. 412; 7 Bacon Abr. 566; 1 Chitty Pleading 644; Badner v. Demick, 20 Johns. 406; 2 Saund. R. 207 a; Vowles v. Miller, 3 Taunt. 137; Angell on Watercourses 153; 2 Saund. R. 114, notes; 1 Chitty Pleading 415; Pastorius v. Fisher, 1 Rawle 27; Graver v. Sholl, 6 Wright 58; Delaware & Hudson Canal Co. v. Torrey, 9 Casey 143; 1 Saund. R. 346 b; 2 Hilliard on Torts 680; 1 Chitty Plead. 412; Cane v. Chapman, 5 Adol. & E. 657, 31 E. C. L. R. 772; Sampler v. Schissler, 1 W. & S. 370; Morris v. McNamee, 5 Harris 180.

It must be a very clear case, that would justify judicial discretion in not admitting pertinent and weighty evidence merely because out of time, which should never be invoked except to prevent injustice: Stetson v. Croskey, 2 P. F. Smith 230.

The objections to the entries in the note book of the deceased engineer as not under oath, and not evidence, are not sustained by the authorities: 1 Greenleaf Ev. §§ 115, 116; Nourse v. McCay, 2 Rawle 70; 1 Smith's Leading Cases 140.

V. K. Keesey and S. Hepburn, for defendants in error.—The Commonwealth granted the fee to the Codorus Navigation Company. That Company sold to Loucks; the only question which can be raised under the pleadings, is: whether Loucks have exceeded their right by repairing and rebuilding, in 1856, the dam of the Navigation Company. There is nothing in the declaration charging the original erection by the Navigation Company, prior to 1856, and that the defendants maintained it: McKeen v. Delaware Division Canal Co., 13 Wright 425.

The Legislature had power to grant to the Codorus Navigation Company the privileges conferred: Union Canal Co. v. Landis, 9 Watts 228; Pittsburg v. Scott, 1 Barr 308; McKeen v. Delaware Division Canal Co., 13 Wright 424; Union Canal Co. v. Young, 1 Whart. 410, 424; Hamilton v. Lycoming Insurance Co., 5 Barr 345; Campbell v. McCoy, 7 Casey 263; Lacy v. Arnett, 9 Casey 169; Bridge Co. v. Lehigh Navigation Co., 4 Russell 9; Coil v. Pittsburg Female College, 4 Wright 445; Angel & Ames on Corporations 510.

The corporation is legally dead. Its life cannot be questioned in this collateral proceeding. And whether dead or alive, it executed its power while living. Things previously granted over by the corporation do not escheat, or revert: Vin. Abr. Escheat, A., pl. 1, 2; Grant on Corporations 314, n. (r). The question of the admission, or rejection of the additional testimony, offered after defendant had closed, was one of discretion in the Court, and is not the subject of review by this Court: Stetson v. Croskey, 2 P. F. Smith 230.

The opinion of the court was delivered, July 3d 1867, by THOMPSON, J.

Having possessed ourselves, after a careful examination, of the facts and law, of the points of controversy in this case, we will discuss them without deeming it beneficial or necessary to notice every point presented in the numerous assignments of error.

1. In the first place, then, was the learned judge right in holding as he did in his general charge, that the plaintiff's narr. in averring, that until the obstruction to the natural flow of water in the Codorus creek by the defendants, occasioned by the repairing or rebuilding the dam therein mentioned, it had been accustomed to flow through and along the premises of the plaintiff, to be regarded as a material averment, excluding the presumption of any nuisance by reason of the prior dam of the company at the same place?

The narr. is in the usual form of a narr. in such a case, and by way of inducement avers the right and enjoyment by the plaintiff of the natural flow of the stream through his property, until the same was disturbed by the defendants in the manner set forth. This admitted nothing, and but asserted a right in the usual mode incident to the ownership of real estate on the stream, to its natural flow through it. The plea of "not guilty" did not necessarily put this portion of the narr. in issue in the first instance at least, any more than it would in slander, the averment that the plaintiff was a good, true and honest citizen. In neither case is the plaintiff bound to prove the averment until an issue is made upon it by the other side. The implication from these words in the narr., drawn by the court, we think was entirely inadmissible. It placed the case before the jury in the attitude of an admission by the plaintiff that no previous obstruction of whatever extent, authorized or unauthorized, to the natural flow of the stream through his premises, was a nuisance or worked harm or injury to him. That being admitted, the defendants would only have to prove that they did no more injury than had been done by somebody else in order to defeat the plaintiff's right of recovery against them. This might introduce innumerable issues; as many at least as there may or might have been trespassers on the riparian rights of the plaintiff. The issue tendered by the plaintiff was single; that the defendant had committed the injury complained of, and their answer was, necessarily, not that somebody before them, with whom they may not have connected themselves, had done the same thing, but that they had not, or if they had, they had a right to do it by grant or prescription. In either case, of grant or prescription, it would be absolutely necessary that the right should be in themselves and not in a stranger.

But it seems to me, according to the scope of the implication allowed from the averment in question, the same effect would follow, if a previous nuisance to the plaintiff had been committed even temporarily by a trespasser. The deduction from the fact assumed as admitted, went the length of establishing that notwithstanding the original dam may have flooded the plaintiff's premises, and the authority to maintain it was gone, and the plaintiff's right to the natural flow of water had revived, yet the plaintiff could not recover for a subsequent injury from the same dam rebuilt without regard to authority, because the admission was that no injury had been occasioned by any previous flooding. By such a rule a single act of trespass would be as efficacious to defeat the plaintiff as a prescriptive right or a grant. No such deduction should have been made from what was but matter of form.

As to the materiality of the matter which may be traversed and matters averred by way of aggravation and inducement, see Steph. on Pleading 241-4. We think the error assigned on this portion of the charge is sustained.

2. The defendant's case was in proof rested upon a supposed right in them by grant from...