Kauffman v. Griesemer

• Citation: 26 Pa. 407
• Parties: Kauffman versus Griesemer.
• Decision Date: 01 January 1856
• Court: Pennsylvania Supreme Court

26 Pa. 407

Kauffman versus Griesemer.

Supreme Court of Pennsylvania.

ERROR to the Common Pleas of Berks county.

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Banks and Strong, for plaintiffs in error.—The court should have brought every part of the testimony to the notice of the jury: Nieman v. Ward, 1 W. & Ser. 68; Parker v. Donaldson, 6 W. & Ser. 132; Brown v. Clark, 2 Harris 469; Bovard v. Christy, 2 Id. 267.

The jury were instructed that if the opening of the ditch caused more than the customary flow of water on the defendant's land, he was not bound to receive it, and anything which he might erect to prevent its flowage upon his land would be a lawful countervailing structure. That a person injured by a nuisance may commit a nuisance in turn. What would prevent the flow of the surplus water would prevent the passage of the natural flow. The defendant had his remedy by action, if he were injured. He might have abated the nuisance if it were one, and for this purpose have entered on the plaintiff's land — his legal right was restricted to that: Ang. on W. C. 139, 40, 41, 42; Gale and Whately on Eas. 290; Dyer v. Depin, 5 Wh. 597; Cooper v. Marshall, 1 Barr 259; Spigelmoyer v. Walter, 3 W. & Ser. 542; Williams v. Gale, 3 H. & J. 231.

H. W. Smith, for defendant in error.—There was no prayer for specific direction on the facts, and the plaintiffs cannot complain that the court omitted to give an instruction which they did not ask.

What the defendant did was merely to protect himself against the flooding of his land. That the water of rain, snow, and freshets still passes over defendant's land, is a fact established by the verdict of the jury. It would be singular if the law should allow a party to abate a nuisance by entering on the other's land, and yet he could not protect himself peaceably and quietly on his own premises: Merritt v. Parker, 1 Coxe N. J. Rep. 460; Williams v. Gale, 3 H. & J. 231; Bentz v. Armstrong, 8 W. & Ser. 40; Ang. on Water Courses 138-100-136; 3 Bl. Com. 5; Gale & Wh. Eas. 291; Duncombe v. Randall, Heely's Rep. 34; Brown v. Best, 1 Wil. 174.

The opinion of the court was delivered by WOODWARD, J.

This was an action of trespass on the case, in which the plaintiffs complained that the defendant had obstructed an ancient watercourse, whereby water was thrown back upon their lands to their injury. The parties own adjoining lands, and some 30 or 40 rods above the dividing line is a strong spring on the land of the plaintiffs, the natural outlet of which is in the direction of the defendant's land. This outlet having rising ground on both sides of it, serves to carry off not only the water of this spring, but also the water from rain and snow which fall on some 600 acres of land, property of the plaintiff and others. At a very early period in the history of Berks county, a public road was laid out across the outlet, near the spring, with a small bridge, composed of logs and plank, over the outlet, leaving a waterway underneath. The bridge was repaired from time to time, and the passage under it cleared of rubbish, and finally a plank trunk was put in to conduct the water under the bridge. Some few years since the public road was vacated, and then the father of the plaintiffs took out the trunk and opened a passage for the water. Some witnesses speak of the spring as a natural pond, covering half an acre of ground, and others say that formerly they mowed grass growing where the pond has been known of late years. Whether it was a reservoir by nature, or made so by the embankments of the public road, and the partial obstruction of the outlet, is not an ascertained fact in the case. The attention of the jury was not directed to it, and no point was submitted on the subject which enables us to infer how they may have regarded it.

But whether the customary flow from this natural or artificial pond was into the defendant's land, was a very important inquiry as affecting the rights of both parties. It was made a prominent question on the trial. Put to the jury as it was, we are obliged to regard the fact as found, that no water ever reached the defendant's land through this channel, except in freshets, until the ditch was dug, for the obstruction of which this suit was brought. There was evidence that made it the duty of the court to submit this question, and which justified the jury in finding as they did; but it is complained of on the part of the plaintiffs, that in determining the customary flow, the court did not direct the attention of the jury to the state of the ground before the old road was built.

Doubtless the ancestor of the plaintiffs had a right, after vacation of the old road, to remove it altogether, and restore the premises to the state they were in before the road was built. If the effect of exercising this right was to give the water its original, but long-suspended flowage, and thereby cause it to penetrate the defendant's land, which, during the partial obstruction of the road, it had failed to reach, it was a very important conclusion of fact, and should have been ascertained and established. But if plaintiff's counsel thought there was evidence to establish it, they doubtless presented it in argument to the jury, and if they wished the court to charge upon it, they should have called on them by an appropriate point to do so. It is not error for a court to omit to charge on every possible aspect of the facts, especially when uninvited by the party complaining. So far as the judge dealt with the facts, he presented them fairly. The witnesses, to whose testimony he referred, spoke of the flow of the water as they had known it. If their memories were not older than the road, this was not their fault, and it was no reason why the court should withhold their testimony from the jury. If there was evidence that proved a different state of waters before the road was built, the court said nothing to damage the effect of it, and the plaintiffs had the benefit of it; but not having invoked judicial comment upon it, they have no reason to complain that judicial comment was withheld.

Taking it then as an established fact, that the ordinary flow of water from the plaintiff's spring did not reach the defendant's land, though tending towards it, did he do anything to obstruct the floods and freshets that were accustomed to flow there? Most certainly he did not, for the court told the jury that "to prevent the waters of floods and freshets flowing where they were accustomed to flow, the defendant could have no right. Any obstruction to any such waters would give the plaintiffs the right of action." Was this sod dam an obstruction of any such waters? In finding for the defendant, the jury answered this question in the negative.

But if the defendant did not obstruct the only water that was accustomed to flow into his land, for what is he sued? It appeared from the testimony of Nathaniel Bertolette, a witness called on both sides, that from a point in the plaintiff's field, about 17 rods north of the division fence, there was an ascent of several inches to the fence, and in 22 feet from the fence south into Griesemer's land, an elevation of 10 inches more. This perhaps accounts for the fact that the water only of floods and freshets reached Griesemer's land. Whether the ordinary flow wasted itself by absorption and evaporation, or was consumed in irrigation of the 50 acres of plaintiffs' meadow, it did not visit the defendant's land, and from the topography of the place, it was physically impossible that it should. But to compel it to go there, a ditch was dug, which, according to one witness, extended at least 12 feet into Griesemer's land. Finding that the water thus introduced was injurious to his crops, Griesemer built the sod dam across the ditch at the line fence, and this is the wrong complained of.

Almost the whole law of watercourses is founded on the maxim of the common law, aqua currit et debet currere. Because water is descendible by nature, the owner of a dominant or superior heritage has an easement in the servient or inferior tenement for the discharge of all waters which by nature rise in or flow or fall upon the superior. Hence the owner of a mill has an easement in the land below for the free passage of the water from the mill, in the natural channel of the stream, accompanied with a right to enter upon the land for the purpose of clearing out the stream, and removing obstructions to the free flow of the water: Prescott v. Williams, 5 Met. (Mass.) R. 429.

This easement is called a servitude in the Roman law, and consists, says Pardessus, in the subjection of the inferior heritage towards those whose lands are more elevated to receive the waters which flow from them naturally, and quoting the Code Civil, he adds, "this obligation applies only to waters which flow naturally, without any act of man;" those which come either from springs, or from rain falling directly on the heritage, or even by the effect of the natural disposition of the places, are the only ones to which this expression of the law can be applied. It is not however to be understood, he goes on still further to say, that because the flow of water must not be caused by the act of man, that therefore the proprietor who transmits water to the inferior heritage, is not permitted to do anything on his own land — that he is condemned to abandon it to perpetual sterility, or never vary the course of cultivation, simply because such acts would produce some change in the manner of discharging the water. The law intends not this; it prohibits only the immission into the inferior heritage of the waters which would never have fallen there by the disposition of the places alone. It neither would nor could refuse to the superior proprietor the right to aid and direct the natural flow.

Hence, for the sake of agriculture — agri colendi causa — a man may drain his ground which is too moist, and...