Argued
February 8, 1893
Appeal, No. 11, Jan T., 1893, by defendant, from judgment of
C.P. Chester Co., Jan. T., 1892, No. 9, on verdict for
plaintiffs, Lydia C. Riddle and Samuel D. Riddle, executors
etc., of Samuel Riddle, deceased.
Trespass
for injury to water power. Before HEMPHILL, J.
The
case was originally brought in C.P. Delaware county, Dec. T
1889, No. 88. On change of venue, the case was transferred to
Chester county.
At the
trial, it appeared that in 1884 the county commissioners of
Delaware county rebuilt a bridge over Chester creek at a
point in close proximity to the mills belonging to the estate
of Samuel Riddle, deceased. The dam from which the water
power for the mills was supplied was about twelve hundred
feet above the bridge. The milldam and the mills had all been
built before the reconstruction of the bridge was commenced.
The evidence showed that in building the new bridge about
forty-eight feet of solid stone masonary had been built in
the creek-bed, which before had been open for the free
passage of the waters of the creek.
Henry
Riddle, a witness for plaintiff, who had had some twenty
years' experience in the manufacturing business
testified that he had known of no instance of depreciation in
mill property caused by flooding. He was objected to as a
witness as to amount of depreciation, but admitted. [3]
David
Evans, a witness for plaintiff, testified in substance that
in time of freshets the abutments of the new bridge seriously
obstructed the ventage of the water, and thus interfered with
plaintiff's water power.
The
witness was then asked this question: "Q. From an
examination of the ground and the course of the stream and
the current, can you say whether the bridge is located in the
best practical way to pass the waters in time of flood?"
Objected to, objection overruled and exception. [4]
"A.
It is not. The reason I say that is from the configuration
and topography of the ground. The waters in time of flood
pass from the Aston side under the railroad bridge and thence
towards the Middletown side, striking about the point of this
present Middletown abutment and at the point where the
largest volume of water should strike, is the point that
should be open for the ventage of the waters."
The
court charged in part as follows:
"It
seems that in 1760, under proceedings in the court of quarter
sessions of Chester county, of which Delaware county then
formed a part, a public road was laid out and opened which
crossed Chester creek where the present bridge is now
located. Prior to 1843, a wooden sleeper bridge spanned and
creek at this point, and formed a part of the roadway laid
out and opened in 1760. In that year (1843), an extraordinary
freshet washed that bridge away and injured the stone
abutment on the Aston side. In the same year, or in 1844, the
bridge was replaced by another wooden structure, which,
however, was lengthened about 60 feet on the Aston side, and
which rested on two stone abutments and four stone piers,
leaving an open space between the abutments of 140 feet
through which the waters of the creek might flow
unobstructed, save only by the stone supporting piers, some
rocks or boulders, and some bushes and trees that had grown
up in the bed of the stream. This bridge falling into decay
was replaced by the present iron bridge in 1884. It was
erected upon the same ground as the bridge removed had
occupied, and upon the roadway as laid out in 1790. The
Middletown abutment, built of solid masonry, was, however,
extended out into the bed of the stream 60 feet, leaving a
space between the two abutments of 80 feet, which was spanned
by an iron superstructure from 10 to 11 feet above the water
beneath, at its ordinary stages. In 1878 or 1879 the breast
of the McCready dam, which stood about 50 feet above the
bridge and opposite to the lower end of mill No. 2, and which
had been purchased by Mr. Riddle, was removed. In 1881, Mr.
Riddle erected the brick mill, about two thirds of which was
located in the bed of the McCready dam and the stream below.
About the same time Mr. Riddle built a stone wall five feet
thick and averaging in height about six feet, from the waste
way of the head-race down to the upper corner, nearest the
creek, of the brick mill. This wall was all built in what was
formerly the bed of the McCready dam, and was filled in
behind so as to increase the yard room of the mills and
protect them from flooding. In 1884, Mr. Riddle placed a
turbine water wheel between the brick mill and the blacksmith
shop, conducting the water by a large iron flume from the
head-race just below mill No. 2, to the wheel, and thence by
a tail-race dug between the first pier and the Middletown
abutment, of the old bridge, down to the stream below the
bridge.
"Now,
the plaintiffs allege that by reason of the manner in which
this bridge was constructed, namely, by the extension of the
Middletown abutment 60 feet into the bed of the stream, and
curtailing of the space between the abutments from 140 to 80
feet, the water in the usual spring and fall freshets is
dammed back and floods their mills and adjacent yard, causing
them great injury and inconvenience and greatly depreciating
the market value of their mill property. If these allegations
be true, the county must answer in damages for the loss which
it has entailed upon the plaintiffs; for it was the duty of
the county, in the construction of its bridge, to leave an
opening or openings sufficiently large to afford passage for
all the water that might reasonably be expected to flow
through such a stream as Chester creek; taking into
consideration the character and topography of the country
through which it flows, the extent of country it drains, the
size of the stream, the height of its banks and the usual
freshets to which it was known or might reasonably be
expected to be subject. The county, however, was not required
to anticipate or provide against extraordinary or unusual
freshets, nor against every possible or remote contingency,
such as cloud bursts or the breaking of dams above. They are
visitations of providence, and the destruction they bring
must be borne by those on whom they happen to fall. It is not
questioned but that the span of 80 feet is ample, and more
than ample, for the free passage of all the water of this
stream in its ordinary stages, but the important question for
your serious consideration and determination is -- is it
sufficient to vent the stream when swollen by the unusual
spring and fall freshets to which the creek is subject, or
does it, in such freshets, by reason of its extended
Middletown abutment and contracted span, dam up the water to
such a height as to flood the plaintiff's mills and
property? The burden is on the plaintiffs to satisfy you that
the injury they complain of was caused by the manner in which
the bridge was constructed -- being insufficient to vent the
ordinary and usual freshets to which the stream is
subject."
After
reviewing the evidence, the court continued:
"If
the same result would have been produced by the erections
referred to had the old span of 140 feet with piers, etc.,
still existed, then the plaintiffs cannot recover in this
action, for the reason that the injury complained of was not
caused by the erection of the new bridge. [If, however, a
larger span would, under the circumstances, have obviated the
damming up and flooding, then the plaintiffs are entitled to
recover for the injury sustained, for Mr. Riddle had a
perfect right to raise his dam breast and erect his wall and
mill where he did, and as all of it was completed before the
bridge was commenced it was the duty of the commissioners in
the building of the bridge to provide for the then existing
conditions of and along the stream.]" [11]
Plaintiffs'
points were among others as follows.
"6.
The right to flow of running water without alteration being
common to all those through whose land it flows, any
unauthorized interference with the free flowing of the water
in its natural course to the prejudice of such landowner is
the subject of an action of damages. Answer: As a correct
enunciation of a legal principle, this point is
affirmed." [12]
"9.
If the defendant has so constructed their bridge that the
abutments and wing-walls have diminished the space for the
passage of the waters of the creek, and the effect of such
construction is, when there is a great flow of water caused
by rain or the breaking up of winter such as the stream is
liable to, to obstruct the free and accustomed flow of the
water and of ice and to set the same back on the
plaintiff's mills, and thereby for a time to prevent the
use of any of the mills and to occasion other damage, the
plaintiff is entitled to recover. Answer: This point has in
effect been passed upon in my general charge, and I need only
repeat that if the commissioners in the construction of the
bridge have failed or neglected to provide for the free flow
of the waters of the stream in times of the usual or ordinary
freshets to which it is subject and damage has resulted to
the plaintiffs by reason of such failure or neglect, the
defendant is liable in damages for the injury done."
[13]
"11.
Samuel Riddle, being the owner of the land, had the right to
build the brick mill where he did, if the building thereof
did not materially affect the usual flow of the stream to the
damage of others having rights thereon, and his so building
this mill gave no rights to the defendant to obstruct the
free flow of water in its natural course, either in ordinary
low stages or in ordinary floods or freshets." Affirmed.
[14]
Defendant
submitted among others the following...
