Mowday v. Moore

• Decision Date: 31 March 1890
• Docket Number: 145
• Citation: 133 Pa. 598,19 A. 626
• Parties: D. Y. MOWDAY v. S. M. MOORE
• Court: Pennsylvania Supreme Court

19 A. 626

133 Pa. 598

D. Y. MOWDAY v. S. M. MOORE

No. 145

Supreme Court of Pennsylvania

March 31, 1890

Argued February 6, 1890

APPEAL BY DEFENDANT FROM THE COURT OF COMMON PLEAS OF MONTGOMERY COUNTY.

No. 145 July Term 1889, Sup. Ct.; court below, No. 1 March Term 1887 C.P. in equity.

On April 20, 1887, David Y. Mowday filed his bill in equity against Samuel M. Moore, averring that the defendant, by the careless and negligent construction of certain buildings on his own premises, had caused water from a mill-race, running through his lot, to flow along and through the foundation walls of the buildings into the cellar of the plaintiff praying for a decree requiring the defendant to remedy the wrong, for an injunction and for general relief. The defendant, reserving all benefit of exception and objection to the errors, etc., of the bill, and to the jurisdiction of the court, answered, and issue was joined, whereupon the cause was referred to a master, who found in substance the following facts:

On April 20, 1884, the defendant was the owner of a lot of ground in the borough of Norristown, fronting on Main street 46 feet, extending back to Lafayette street with a frontage thereon of 45.71 feet, and bounded on the one side by Mill street, and on the other by property of the plaintiff. On that day the defendant sold and conveyed to the plaintiff a part of said lot, viz., a strip of ground lying next to the said property of the plaintiff and extending through from Main to Lafayette street, with a frontage of 20.05 feet on the former and of 19.95 feet on the latter.

On the part of the lot retained by the defendant were two buildings a long frame structure standing at the corner of Main and Mill streets, and a stone building, one story high, formerly used as a cooper shop, at the corner of Mill and Lafayette streets. Under both these buildings and along the line of Mill street, ran an artificial aqueduct known as Heebner's race, conducting water from a place called Heebner's meadows to a mill at the foot of Mill street, and passing in its course through various private properties and under several streets. This race had been in existence and use for a long time prior to 1884, and was still in use. Throughout the entire length of the defendant's lot the race was constructed with a wall on each side of the channel, and was covered with an arch except a section of it next to Lafayette street the covering of which was of flat stones, all the walls enclosing it, including the covering, being under ground. The depth of the channel below the covering was between five and one half and six feet. Where the race entered the defendant's lot, at Main and Mill streets, it was about seven feet wide inside the walls which support the arch, and at that point the space between the race and the lot sold by the defendant to the plaintiff was about fourteen and one half feet. As it approached Lafayette street the race became narrower, so that the channel was between two and one half and three feet wide when it reached that street, and the distance at the line of Lafayette street between the race and the lot purchased by the plaintiff was correspondingly increased.

Subsequent to his sale to the plaintiff, the defendant tore away the old cooper shop and frame building before mentioned, and erected upon his remaining lot large and substantial brick buildings, until the whole space between Mill street and the plaintiff's lot was covered therewith. These buildings were constructed without cellars. The first two of them were erected in 1884, were located at the corner of Lafayette and Mill streets, and fronted on the latter. Their front walls were a continuation above ground of the wall on the side of the race next the street. Their rear walls were wholly upon the defendant's ground. Between the rear walls and the race, the defendant dug trenches for three foundation walls extending across his lot. In building the walls which were placed in these trenches, the stones were laid without mortar for the first course, and the same plan was followed in building the rear foundation wall. In digging the trenches across the lot, the earth was entirely removed from the race wall, which in some places was taken down and rebuilt by the defendant, and these foundation walls were so built that their ends abutted against the wall of the race, and upon reaching the proper height they were carried across the race to the line of Mill street. "According to the testimony of Alexander K. Calhoun, civil engineer, they and the back line wall are four inches below the surface of the water in the race, by actual measurement." During the construction of these two buildings no complaint as to the manner of their construction was made by the plaintiff to the defendant.

In the summer of 1886 the plaintiff commenced the erection of two brick dwelling houses upon the Lafayette street end of the lot purchased by him from the defendant. The cellars of these houses were about forty feet in length and were dug to the ordinary depth, the one next the defendant's buildings being sunk ten inches below the bottom of the defendant's rear foundation wall, and the plaintiff's cellar wall was built up against the line of the defendant's wall, starting six inches deeper than the floor of the cellar. During its building, water came into the plaintiff's cellar at different points through the bottom of the defendant's wall. The plaintiff went on with his building notwithstanding, and finished it in due time. He rented the house next adjoining the defendant's premises, the tenant taking possession in March, 1887, and remaining until August, 1887, when he moved out. During that time the cellar of that house contained, and it has contained ever since, water coming from the mill race. In the judgment of the master, this water was conducted from the race to the plaintiff's cellar by the three foundation walls extending across the defendant's lot, under the first two of the buildings erected by him; but none of the water came through the building which the defendant subsequently constructed on the Main street end of his lot, the foundations of that building having been so constructed that the walls were prevented by T's, or short cross walls, laid in cement, from operating as conduits.

Testimony for the defendant tended to show that the plaintiff said to the defendant, while negotiating for the purchase which he made from him, that it would be utterly impossible to put buildings there with cellars, as the water from the race would leak through, and he had had trouble from this source when putting up a building he had constructed in the vicinity some time before; that on the defendant's speaking of an intention to build himself, the plaintiff replied, "Mr Moore, you cannot put a cellar under it, as it is utterly impossible;" and that the plaintiff made similar statements to other persons, including the defendant's agent for the sale of his property, prior to the erection of the defendant's buildings; that the ground on the defendant's and plaintiff's lots was wet, soggy and marshy, and the lots had been filled up with ashes, rubbish and the cleanings of the race, the ground beneath the filling being of such a spongy nature as to allow water to percolate through it quite easily. A number of witnesses testified in rebuttal for the plaintiff as to the character of the ground, some of whom admitted that silt from the race and rubbish had been used to fill up the lots. The defendant, the mechanics who constructed his foundation walls, and other witnesses, testified that the bottoms of the walls running across his lot were all at a higher level than the high-water mark in the race, and several of these witnesses stated that there was no water in or about the foundations when they were laid. The testimony of Calhoun, referred to in the master's findings of fact, to the effect that those walls extended below the surface of the water, was based, according to his statements while upon the stand, in part upon an inspection and measurements made in the race and in the plaintiff's cellar, about the last of December, 1888, or early in January, 1889, and in part upon the facts stated by the witnesses for the defendant. He testified further that when he inspected the race he found a deposit of silt and mud in it, which was about two and one half feet deep at a point above Main street, and eight inches deep at a point below Lafayette street, but that in his opinion, in view of the width of the channel and the velocity of the current, this deposit would not raise the level of the surface of the water in the race. Calhoun's testimony, as well as other testimony tending to show the source of the water in the plaintiff's cellar, was delivered as a part of the plaintiff's rebutting case, after an objection by the defendant to the admission of any testimony not properly in rebuttal. Witnesses for the plaintiff testified that by making an expenditure of from $8 to $10 for cement, the plaintiff could have constructed a water-tight wall which would have prevented the passage of any water into his cellar through the defendant's foundations, and that the foundations were necessary for the defendant's buildings and were properly constructed. The plaintiff testified that while the defendant's building operations were in progress, he notified the latter that he would be held responsible for any damages arising from flooding the cellar. It appeared, further, that the plaintiff had brought an action at law against the defendant soon after the filing of his bill in equity, to recover damages for the flooding of his cellar by the same water complained of in the bill; that said action was tried on June 11, 1888, when the jury disagreed and...