Fredericks v. Pennsylvania Canal Co.

23 A. 1067, 148 Pa. 317, 1892 Pa. LEXIS 977

• Court: Supreme Court of Pennsylvania
• Decided: March 28, 1892
• Docket: Appeal, No. 33
• Status: Published

Opinion

Per Curiam,

We do not think the amended narr of Aug. 31,1888, introduced a new cause of action. It was a mere restatement, in a more distinct form, of the original cause of action. It was not error, therefore, to allow this amendment to be filed.

It must be conceded that if the dam at the time of the commencement of this suit was in the same condition that it was when it was originally constructed, the plaintiffs would have had no cause of action. The plaintiffs’ contention was that it had been raised by the use of permanent splashboards, by means of which the plaintiffs’ land had been overflowed, and their crops injured. If the dam had been raised, as alleged by plaintiffs, it would amount to an enlargement of the same within the meaning of the present constitution, which abolished the old rule in regard to consequential damages, and established one more in accord with justice. Sec. 8, art. xvi, of that instrument declares that: “ Municipal and other corporations and individuals vested with the privilege of taking private-property for public use, shall make just compensation for property taken, injured or destroyed by the construction or enlargement of their works, highways or improvements, which compensation shall be ' paid or secured before such taking, injury or destruction.” Hence, if the defendants have enlarged their works, i. e., raised their dam so as to cause a greater flow of water upon the plaintiffs’ land than when said dam was. originally constructed, the defendants would be liable for any damages caused by such increased flow. Whether the dam. had been so raised was an important question of fact, and it was properly submitted to the jury. The defendants contended, and introduced some evidence to show, that splash-boards were originally placed upon the dam. The answer to-this was that, if so placed, they were temporary in their character, were designed for a temporary purpose, and were invariably swept away by %dgh water. The plaintiffs further contended that the present splashboards were of a permanent-character, were intended for a permanent purpose, and the effect was to permanently raise the dam. All this was fairly submitted to the jury. An examination of the numerous specifications fails to disclose error.

Judgment affirmed.