Morris v. McNamee
| Decision Date | 05 January 1852 |
| Citation | 17 Pa. 173 |
| Parties | Morris <I>versus</I> McNamee. |
| Court | Pennsylvania Supreme Court |
The case was argued by Mulvany and Williams, for plaintiffs in error.—The declaration, as it existed up to the time of the amendment, was simply for building a dam across the stream and thereby penning back the water and preventing it from flowing to the plaintiff's mill. The amendment was for sending down too much water. Under the first narr. the right of the defendants to build and keep up the dam was put in issue; under the amended narr. the defendants, without reference to the dam, are charged with rushing the water down the stream to the premises of the plaintiff at unreasonable times and in unreasonable quantities. The amendment therefore introduced a new and distinct cause of action, and should not have been allowed by the court: Wilson v. Wallace, 8 Ser. & R. 43; Cassel v. Cooke, 8 Ser. & R. 287; Newlin v. Palmer, 11 Ser. & R. 98. Besides the amendment here was offered after the case had been arbitrated: whereas it is decided in Winder v. Northampton Bank, 2 Barr 446, that "after award and appeal, a new count varying the cause of action cannot be filed:" Reitzel v. Franklin, 5 Watts & Ser. 33, and Tryon v. Miller, 1 Wharton 11. Under the original narr. in this case, it is clear that the plaintiff on the trial would have been confined to evidence as to the lawfulness of the dam and the detention of the water; under the amended narr. his evidence related in part to a totally different cause of action, to wit, the superabundance with which the water was supplied to his mill.
2. The court erred in rejecting the lease from Naomi Morris to Alfred Edwards, dated January 1, 1845, offered in evidence by the defendants.
The objection was that the legal title was in trustees. But Naomi Morris was the owner; had the equitable title; could support ejectment in her own name; and why, therefore, should not a lease executed by her, in the absence of any proof of dissent by the trustees, be held valid? The lawfulness of the dam was put in issue, and the object was to show that her husband in building the dam acted by her authority, and that his acts were lawful.
As to third assignment: The first point was in substance, that the act of erecting the dam by the defendants was a lawful act, and therefore the plaintiff was not entitled to recover, under the declaration in the case. Now that the dam was a lawful one was conceded by the court in their charge to the jury; and yet the effect of the verdict is to compel the defendants to take it down. The declaration is for a nuisance; it is in exact conformity with the precedents for a nuisance, and strikes directly at the right of the owner of the premises to erect or continue the dam. The danger therefore is, that if the judgment on the verdict be suffered to remain and not be reversed, Mrs. Morris will be deprived of the dam altogether, and of all right to use the stream for the purposes of her mill. The court ought therefore to have charged the jury that under the narr. as filed, the plaintiff was not entitled to recover.
The remaining points may be considered together. The general ground taken by the defendants was, that under any circumstances the jury must find that the defendants had acted unreasonably or wantonly, or no verdict could be found against them. This position the court denied, and charged the jury, that "The law does not compensate for wanton injury only, but also for such as results from acts that show indifference in regard to the rights of others; and if the jury find that though the defendants had no positive desire to injure plaintiff, they yet did injure him by an unreasonable or unnecessary detention of the water of the stream, the verdict must be for the plaintiff." Now the general rule, it is submitted, is, that in a case like the one in question, the plaintiff is not entitled to recover, unless he can show that the water is detained from him vexatiously or maliciously: Hoy v. Sterritt, 2 Watts 327; 3 Caine's Rep. 312, Palmer v. Milligan; 17 Johns. Rep. 306, Merritt v. Brinkerhoff; Angel on Water-Courses, 19-20.
Boyd and Cadwallader for defendant.—As to first error: The amendment does no more than state the consequence to the plaintiff of penning back and stopping the flow of the water, which was, as a matter of course, to "send down the water at unreasonable times and in unreasonable quantities." Hence there was no necessity for the amendment, as the court would have been bound to admit such evidence, to show the extent of the damages done to the plaintiff by holding the water back. Among the many decisions on this point, Hart v. Evans, 8 Barr 28, is the last. In the case at bar, the water was kept back in the day time, and rushed down in the night time and on Sundays, the consequence of which was to prevent the plaintiff from using his cotton factory, or to compel him to procure other power or stand still; hence it comes directly within Hart v. Evans, that "the tortious act is itself the gravemen of the action, the necessarily resulting injuries being only the measure of the damages." See Lloyd v. McGarr, 3 Barr 482-3, where the same thing is held by the Chief Justice. Also Smith v. Smith, 5 Barr 254.
As to second error: The lease from Naomi Morris to Edwards, was irrelevant. As to the third assignment, the points referred to were mainly ruled in favor of the defendants, and if any one has a right to complain of the charge, it is the plaintiff, for it is impossible to read the evidence and say that $200 was sufficient to cover the plaintiff's damages. As to the allegation that this verdict will compel the defendants to take down...
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