Miller v. Hanover & McSherrytown Water Co.

Supreme Court of Pennsylvania
Miller v. Hanover & McSherrytown Water Co., 240 Pa. 393 (Pa. 1913)
87 A. 706; 1913 Pa. LEXIS 682
Brown, Fell, Mestrezat, Moschzisker, Pell, Stewart

Miller v. Hanover & McSherrytown Water Co.

Opinion of the Court

Opinion by

Mr. Chief Justice Fell,

One of the uses made by the plaintiff of the water of a stream that flowed through his farm was for motive power to pump water from a well to his buildings. The defendant, an upper riparian owner, constructed a dam and water plant structures on its own land and diverted a third of the usual flow of the stream from its natural channel. The plaintiff brought an action of trespass and at the trial testimony was admitted to show the difference in value of the farm before and after the water was diverted, thus allowing a recovery for permanent injury. The only question presented by this appeal is whether the ruling as to the measure of damages was proper.

The diverting of a stream without paying or securing compensation to a lower riparian owner is a trespass, Lord v. Meadville Water Co., 135 Pa. 122, and where the injury is of a permanent character, there may be a recovery on that basis and the depreciation in value of the land injured is a proper measure of damages: Seely v. Alden, 61 Pa. 302; Woodward v. Webb, 65 Pa. 254; Davis v. Southwest Penna. Pipe Lines, 223 Pa. 56. That the injury in this case to the plaintiff’s farm was of such a character as to justify the assessment of damages on the basis of permanency is clear. The defendant constructed a cement dam across the stream in which it accumulated water and conducted it to a sedimentation basin from which it was pumped into mains for distribu*396tion and consumption. Its works were substantial and complete, and presumably necessary for its operation and the reasonable supposition is that the conditions which caused injury to the plaintiff’s land would continue indefinitely.

The judgment is affirmed.

Reference

Full Case Name
Miller v. The Hanover & McSherrytown Water Company
Cited By
6 cases
Status
Published
Syllabus
Waters — Injury to riparian rights — Permanent injury — Trespass — Measure of damages. 1. Tbe diversion of a stream without paying or securing compensation to a lower riparian owner is a trespass, and where tbe injury is of a permanent character there may be a recovery in an action of trespass on that basis, and the depreciation in value of tbe land injured is tbe proper measure of damages. 2. A case permitting a recovery for the depreciation of the value of a farm is made out where the defendant, an upper riparian owner, had constructed a dam and water plant structures on its own land and had diverted a third of the usual flow of a stream from its natural channel, thereby limiting plaintiffs use of the water for motive power. .