Philadelphia & R.R. Co. v. Smith

• Decision Date: 26 November 1894
• Docket Number: 2.
• Citation: 64 F. 679
• Parties: PHILADELPHIA & R.R. CO. v. SMITH.
• Court: U.S. Court of Appeals — Third Circuit

64 F. 679

PHILADELPHIA & R.R. CO. v. SMITH.

No. 2.

United States Court of Appeals, Third Circuit.

November 26, 1894

John R Emery, for plaintiff in error.

R. V Lindabury, for defendant in error.

Before ACHESON and DALLAS, Circuit Judges, and WALES, District Judge.

DALLAS Circuit Judge.

On May 14, 1879, the Delaware & Bound Brook Railroad Company leased its railroad to the Philadelphia & Reading Railroad Company plaintiff in error, and the latter company entered under the lease. Long prior to the demise, an embankment forming part of the roadbed had been so constructed as to prevent the flow of water through a small run, fed by springs, on land of the plaintiff below; and a ditch had been dug along the foot of the embankment to conduct the water to the Raritan river and there discharge it. The first count of the declaration avers that this ditch 'fails altogether to drain the water of said springs from the plaintiff's said farm'; and, on behalf of the plaintiff, evidence was adduced to show that the defendant allowed it to become filled, and that, although the plaintiff had cleaned his spring run out once after the railroad ditch was dug, such cleaning proved to be useless, because the spring run had no outlet. This was contradicted by the witnesses for the defendant, and upon the question thus presented the court instructed the jury that, if any portion of the plaintiff's damage was due to his failure to keep the run in proper condition on his own land, 'he could not recover for such portion'; 'that if he, by any act of omission or commission, permitted the ditch upon his own property to become so clogged up or filled up that the water, instead of going down to the property of the defendant, went out over his own property, soaked through the ground, and over the top of it, so as to render it acid or boggy, for that part of the damages he cannot recover.' The defendant was not satisfied with this, but asked for further instruction 'that the plaintiff was bound to keep open his spring-run ditch upon his own land, and if the situation of the ditch was such that, from freshets or other causes, the ditch became filled, he cannot recover, if his negligence to keep the ditch open contributed to his injury.' This point was evidently framed upon the theory that if the plaintiff's neglect had caused him any damage, he could not recover at all,-- not even for that which had been caused wholly by the defendant; and it was disaffirmed upon the ground that failure to keep his spring run open would not bar his right of recovery to the extent of any damage which actually resulted solely from the defendant's wrong, even if the plaintiff had been additionally damnified through his own want of care. In this there was no error. The doctrine of contributory negligence has no application. One who decisively contributes to bring a mischief on himself may not impute it to another, but he who does hurt to his neighbor cannot escape liability for the damage thereby occasioned by showing that the person he has injured has also sustained other or additional damage of the same character through separate acts or omissions of his own. In such cases, each party is chargeable with the consequences of his own conduct, and neither of them is at liberty to shift his burden to the shoulders of the other. This view of the law was appropriately applied by the court below, and therefore the second assignment of error is not sustained.

The remaining assignments relied upon relate to the cause of action set out in the second count. That count alleges that the embankment already mentioned diverts the ancient course of the water of the Raritan river, in times of freshet, to the injury of the plaintiff's land, and this allegation is to be now accepted as true. It also avers that the defendant became the lessee and possessor of the railroad after the embankment had been erected, but 'has since continued, used, and maintained it,' and of these facts there is no doubt. It further alleges, however, that the plaintiff 'requested the said defendant to remove the said obstruction,' but of such request no proof whatever was made or evidence offered, and thus arises the more important question in the case, viz. is the appellant liable, without request or notice, for the damage caused to the appellee by the existence of this embankment, although the appellant did not erect it, and has maintained and used it only as a part of its roadway?

From the report of Penruddock's Case, 5 Coke, 101, it appears that the house of the defendant had been built by his feoffor on his own freehold, but so near to a house which was afterwards, and before suit brought, conveyed to the plaintiff, that the former discharged water upon the latter. The plaintiff brought his action quod permittat, and one of the points presented and considered was whether the action would lie against the feoffee of him who had erected the house which caused the nuisance, and it was held by the king's bench, affirming the judgment of the common pleas, that it would, but only after request for abatement. The court said:

'And if it be not reformed after request made, the quod permittat lies against the feoffee, and he shall recover damages if he do not reform it; but without request made it doth not lie against the feoffee, but against him who did the wrong it lies without any request made, for the law doth not require any request to be made to him who doth the wrong himself.'

The judgment in the Case of Rolf, which was decided about 15 years earlier, seems to have been to the same effect, but the Penruddock Case has, for about three centuries, been regarded as the leading one on the subject, and as settling the law of England with respect to it. Pollock on Torts, which was first published in 1886 or 1887, has already passed through three editions, and in the latest of these its eminent author still retains his citation of that case as authority for the proposition, which he lays down without hesitancy or qualification, that 'if one who has erected a nuisance on his land conveys the land to a purchaser who continues the nuisance, the vendor remains liable, and the purchaser is also liable if, on request, he does not remove it. ' If it had been deemed necessary, other authorities might have been added in support of this statement, and among them the case of Jones v. Williams, 11 Mees. & W. 176, in which Baron Parke followed the Case of Penruddock, and quoted with approval Jenkins' Sixth Century, case 57 (where he assumes the Penruddock Case to have been referred to), for this recital of the law:

'A. builds a house so that it hangs over the house of B., and is a nuisance to him. A. makes a feoffment of his house to C., and B. a feoffment of his house to D., and the nuisance continues. Now D. cannot abate the said nuisance, or have a quod permittat for it, before he makes a request to C. to abate it, for C. is a stranger to the wrong. It would be otherwise if A. continued his estate, for he did the wrong. If nuisances are increased after several feoffments, these increases are new nuisances, and may be abated without request.'

It is not necessary to make any further reference to the English Reports. The industry of appellee's counsel has not enabled him to show that the doctrine maintained in the cases we have mentioned has been discarded by the English courts, and it is entirely safe to assume that it has not been. It is, however, contended that it has been departed from, or materially qualified, in this country, and especially in the state of New Jersey, where the subject-matter of this controversy is situated. If this was so, it would, we think, be unfortunate; for, in our opinion, the requirement of notice in cases of this sort imposes no hardship upon plaintiffs, and is, in fairness, due to defendants. A grantee should not, of course, be held responsible for the creation of an injurious structure by his grantor, and, if not notified of objection, he may be ignorant of its harmful nature, or may legitimately presume that it is voluntarily submitted to; and therefore a plaintiff ought not to be permitted to recover damages for injury alleged to have been done to him by the maintenance of a pre-existing condition during a period when, with full knowledge of his hurt, he had made no complaint of it, nor requested the removal of its cause. As was said in Central Trust Co. of New York v. Wabash, St. L. & P. Ry. Co., infra, 'The subject has been fully considered by the courts both in England and in this country,' and with the same result, viz. 'that, where the party was not the original creator of the nuisance, he must have notice of it, and a request must be made to remove it, before any action can be brought. ' There may be some divergence in expressions of different judges, but that this is a correct statement of the effect of the decisions there can be no doubt. Central Trust Co. of New York v. Wabash, St. L. & P. Ry. Co., 57 F. 441; Plummer v. Harper, 3 N.H. 88; Curtice v. Thompson, 19 N.H. 471; Carleton v. Redington, 1 Fost. (N.H.) 291; Johnson v. Lewis, 13 Conn. 303; Noyes v. Stillman, 24 Conn. 14; Conhocton Road v. Railroad Co., 51 N.Y. 573; Ahern v. Steele, 115 N.Y. 203, 22 N.E. 193; McDonough v. Gilman, 3 Allen, 264; Nichols v. City of Boston, 98 Mass. 39; Grigsby v. Water Co., 40 Cal. 396; Castle v. Smith (Cal.) 36 P. 859.

It is however, further contended that in this particular case notice was not requisite-- First, 'because the defendant has made use of the embankment ever since it acquired possession of the same, with a knowledge of its injurious results; and, second, because the defendant has actively maintained and continued the embankment by repairing and stoning the same. ' The...