Lindeman v. Lindsey

Decision Date25 May 1871
Citation69 Pa. 93
PartiesLindeman <I>et al. versus</I> Lindsey.
CourtPennsylvania Supreme Court


Error to the Court of Common Pleas of Cumberland county: No. 68, to May Term 1871.





S. Hepburn, Jr., for plaintiffs in error.—Covenant and not case was the proper and only remedy upon the agreement between Whisler and Rupp: Angell on Watercourses, § 441; Wilbur v. Brown, 2 Denio 356; Luckee v. Rowzee, 1 A. K. Marsh. 295; Savage v. Mason, 3 Cush. 318. The rights of the parties were not fixed by that agreement. Long usage could alter or modify it as well as destroy it; and the fact whether there had been such usage was for the jury: Strickler v. Todd, 10 S. & R. 69; Richards v. Elwell, 12 Wright 361; McCallum v. Germantown Water Co., 4 P. F. Smith 59; Angell on Watercourses, §§ 135, 428, 429, 432; Young v. Spencer, 10 B. & C. 145; Hobson v. Todd, 4 Term R. 71; Pastorius v. Fisher, 1 Rawle 27. If the water in the dam was wasted by the mutual negligence of the parties, both were contributors to their own injury and neither could recover: Catawissa Railroad v. Armstrong, 13 Wright 193; Little Sch. Nav. Co. v. Norton, 12 Harris 145. The offer of plaintiff was not evidence for any purpose, and that of defendant was proper in answer to plaintiff's evidence. The court should not have determined the fact in answer to defendant's 5th point, and should have answered the question of law presented in it: Angell on Watercourses, § 100.

W. M. Penrose and Henderson & Hays, for defendant in error.—As to the form of action: McCall v. Forsyth, 4 W. & S. 176; Nickle v. Baldwin, Id. 290; Smith v. Seward, 3 Barr 342; Ingles v. Bringhurst, 1 Dall. 346; Martin v. Willink, 7 S. & R. 297, 298; Findley v. Keim, 12 P. F. Smith 112.

The opinion of the court was delivered, May 25th 1871, by SHARSWOOD, J.

Seven points were presented by the plaintiff in error to the learned judge below, and thirteen errors have been assigned here. All these assignments may be disposed of by the consideration of two questions, neither of which seems to us to present any serious difficulty. The first is, What was the legal right of the plaintiff below? And the second, If his right was infringed, did he adopt the proper form of action as his remedy to enforce it? Every other question in the cause appears to have been a question of fact for the decision of the jury and properly submitted to them.

When the proprietors of two opposite banks of a stream of water are desirous of enjoying the advantage of the water-power for propelling machinery, a dam for that purpose cannot be built except by mutual consent, unless indeed it may be what is termed a wing-dam confined to the soil of the person who erects it, or that half of the bed of the stream which belongs to him. If erected by either, on the land of the other, it would clearly be a trespass, and could lawfully be abated by him upon whose land it was built without his consent. When, therefore, they enter into an agreement to erect such a dam, with a covenant for themselves, their heirs and assigns to repair or rebuild it if necessary, it is not a personal covenant merely, but runs with the lands of the respective proprietors, and the stipulations contained in such agreement in respect to the enjoyment of the water-power created by the dam form the basis of their respective rights. It is sufficient to refer to Jamison v. McCredy, 5 W. & S. 229, as a case entirely parallel if not in point. If the instrument contain the grant of an easement or privilege to either party in the land or the water, against such a grant there is no statute of limitation without actual hostile and adverse possession, and certainly no prescription or presumption from mere non-user. Nothing less than an absolute denial of the right, followed by an enjoyment inconsistent with its existence for a period of twenty-one years or more, can amount to an extinguishment of it. In St. Mary's Church v. Miles, 1 Wharton 229, it was decided that in the case of the reservation of a ground-rent by deed, no length of possession of the land without payment of the rent would raise the presumption that it had been released or extinguished. "Although it may be," said Mr. Justice Kennedy, "that the law will in some cases presume a grant in support of a right which has been exercised and enjoyed by a person, without objection or interruption, to the exclusion of all others, for a period of twenty years or more, yet it does not follow that it ought to make such a presumption, in order to defeat a person of a right created by deed and not controverted, without anything being shown to have taken place in the conduct of the parties interested or concerned in the right that was inconsistent with the existence and enjoyment of it." To the same effect is Butts v. Ihrie, 1 Rawle 218; Nitsell v. Paschall, 3 Ibid. 82. It is entirely in accordance with reason and the fitness of things that such should be the law. A man ought not to be obliged unless he requires it, actually to use a right or privilege secured to him by deed, nor to resort to legal proceedings unless his title is denied, and he is actually ousted, disseised, obstructed or prevented by some wrongdoer from an enjoyment of it when he requires and demands such enjoyment. Hence the learned judge below was perfectly right in his answers to the points of the plaintiff in error so far as they set up a title by prescription in him, arising from the mere non-user by the grantor or those claiming under him of the right secured by the agreement between the former owners Rupp and Whisler, dated April 17th 1820. If the plaintiff below had ceased to require the water at all, if he had abandoned the use of his mill entirely, and the defendant and those under whom he claimed had enjoyed all the water for any period of time without denial of the right under the agreement or repudiation of its existence and obligations, he could resume his right at any time, certainly as long as his mill was there. On the other hand, the opposite party could acquire nothing by prescription contrary to the terms of the agreement under which the dam was built, and was to be repaired and maintained. It would perhaps make a different case if the plaintiff below or those under whom he claimed had refused to perform their part of the agreement to contribute in equal proportions to the maintenance and repair of the dam. In this respect the plaintiff in error has no cause to complain of the answers of the court below. Certainly mere neglect to do so, much more when both parties are equally negligent, would not cause a...

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34 cases
  • Appeal of Ferguson
    • United States
    • Pennsylvania Supreme Court
    • January 3, 1888
    ...218; nor by nonuser, nor by anything short of adverse possession continuous for twenty-one years: Hall v. McCaughey, 51 Pa. 43; Linde man v. Lindsey, 69 Pa. 99; Bombaugh v. Miller, 82 Pa. 207; Smyles Hastings, 22 N.Y. 217; Whitney v. Railroad Co., 11 Gray 359; Hayford v. Spokesfield, 100 Ma......
  • Mueller v. Bohannon
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    • Nebraska Supreme Court
    • February 26, 1999 easement arising, as here, out of express grant, as distinguished from one arising out of long adverse user"); Lindeman v. Lindsey, 69 Pa. 93, 99-100 (1871) (stating "[i]f the instrument contain the grant of an easement or privilege to either party in the land or the water, against such ......
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