Tinicum Fishing Co. v. Carter

90 Pa. 85, 1879 Pa. LEXIS 202

• Court: Supreme Court of Pennsylvania
• Decided: May 7, 1879
• Status: Published

Opinion

Mr. Justice Paxson

delivered the opinion of the court,

This case has been so thoroughly discussed in 11 P. F. Smith 21, and 27 Id. 310, that little more remains to be said. While the main point now raised was not ■ expressly decided by either of the former cases, the principles by which it must be disposed of were clearly pointed out. It was held in Tinicum Fishing Co. v. Carter, 11 P. F. Smith 21, that the plaintiff below was not entitled to recover damages for the injury to his fishery resulting-from the construction of a pier out into the river under a license from the port wardens of the city. “As the state,” says Justice Sharswood, “might itself have erected or caused to be erected the wharf and pier built by the defendants below, without any responsibility to the plaintiff for any consequential damages to his easement, or right of drawing his seine on the shore, so neither is the grantee or licensee of the 'state liable for such damage. As to him it isdamnum, absque injuria.” This ruling is equally applicable to the erection and maintenance of the stone wall, which is the chief ground of the plaintiff’s complaint. The Darby Meadow Company has the right under its charter to protect the meadows by the erection of walls to keep back the water, and if in doing so, the plaintiff’s rights of fishery are interfered with or even destroyed, he is without remedy. His damages, if any, are merely consequential, and the constitutional provision that compensation shall be made to the owner of property taken for public use, does not apply to such damages: Monongahela Navigation Co. v. Coons, 6 W. &. S. 101. The meadow company having the right under its charter to construct the wall, it fallows that if said wall had been- constructed under the authority of, or license from the company, as a part of its system, the defendants would have a right to avail -themselves of such authority or license as a defence to this action. Further, if the meadow company neither built, nor authorized its construction, yet if after the wall had been erected, they adopted and maintained it, and had continued to maintain it for more than six years prior to the commencement- of this suit, it would be a complete answer to any claim for damages growing out of its construction.

It was certainly error to exclude from the jury evidence to show that in 1868 the fishery was utterly worthless. This error was cured to some extent subsequently by the admission of testimony of a similar character, and is referred to now to avoid misapprehension in the future.

The court below was called upon by the defendants’ sixth and seventh points to say that if either by the erection of the pier, or from natural causes, the plaintiff’s fishery had been destroyed, the verdict must be for the defendants. The learned judge affirmed these points, with the qualification, that the plaintiff’s right must be absolutely obliterated; and that the destruction of the fishery must “be full and complete — not partial.” Herein we think the learned judge fell into error. There was no question of the obliteration of plaintiff’s right. That might continue long after its exercise had become impracticable or unprofitable. Nor was it a question of the absolute destruction of the fishery. It was certainly sufficient for the defendant to show that- it was- worthless. The plaintiff was suing for damages, and the destruction of a worthless thing could have done him no injury. If the fishery could no longer be fished to profit or advantage, it was worthless. The fact that a few stray shad could be caught there occasionally amounts to nothing.

The first, second, third, fourth, fifth, sixth, seventh, eighth, ninth, eleventh, twelfth and sixteenth assignments of error are sustained.

The judgment is reversed, and a venire facias de novo awarded