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Reports of cases adjudged in the Supreme court of Pennsylvania, in the Eastern district [Dec. term, 1835 - Mar. term, 1841] (Volume 6) online

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authorize the governor to incorporate a company to make a lock
navigation on the river Schuylkill," and the several supplements

Issue was joined on the allegations in the petition, and the cause
came on before a jury of Montgomery county, on the 30th of May
1840, when a verdict was found for the plaintiff for $975, from
which he appealed.


[Schuylkill Navigation Co. v. Freedley.]

The defendants having obtained an order for a change of venue,
the cause came on before a jury of the county of Bucks on the 26th
of October 1840, when a verdict was found for the plaintiff for
$5814, upon which judgment was entered; and this writ of error
was taken.

The evidence given on this trial, so far as it is material to the
understanding of the points discussed in this court, is sufficiently
stated in the charge of the court below (Fox, President), which
was in substance as follows :

" This action depends upon the 10th section of the act of Assem-
bly, incorporating the Schuylkill Navigation Company. The ques-
tions in the case, mainly, are, how great was the inundation caused
by the defendants' dam on the land and mill of the plaintiff? arid
what damage was suffered by the plaintiff thereby ? Is the water
backed by the dam on to Freedley, and to what extent ? This the
jury is to decide from the evidence, which is of various descriptions.
There is direct evidence that, since the erection of the new dam,
the water is swelled, three miles up the river, ten inches higher
than it was previously. If this is to be relied on, then it will
govern this part of the case, for the question is not what the height
of the dam erected *may be, but what effect the dam has r*-i-i-i
had to inundate the plaintiffs property. In considering this ^
question the jury must take the whole evidence. Immediately be-
fore the erection of this dam, it seems that the old one was in a
very bad state. The water leaked through it to a very great extent,
and there were deep depressions in its top, in consequence of its
being undermined, which carried off a large portion of the water.
Now if this were the original state of the dam, when the damages
were assessed to the Bank of Montgomery County, then the rise in
the river, created by the erection of the new dam, be it what it
may, is that much greater than the company have ever paid for.
But if the old dam were even at the top and tight, backing the
water eighteen inches on the bank, and the difference in height
between the two dams is only four and a-half inches, then it will
follow that Freedley is entitled to damages only for an inundation
of four and a-half inches. I repeat, that an important question is,
how high was the water backed by the old dam on the bank ? It
is of no consequence how high the dam was raised ; if it did not
back the water on the party above, he had no cause of complaint in
such case, and could recover nothing. But if the dam was altered,
even if not raised, so as to back water on those above, then their
right to compensation accrued. If the water was drawn off from
the pool above by leakage or otherwise, so as not to inundate those
above, no damage was done to them. If those leaks were stopped
and there was a consequent inundation, then the right to be indem.
nified ensued. Then, when the old dam was raised eighteen inches


[Schuylkill Navigation Co. v. Freedley.j

and the Hank of Montgomery County was compensated, what was
the backwater from the old dam upon the land now of Freedley ?
How much more does it back now than it did then ? There is a
want of evidence to show the precise state of the old dam, imme-
diately after it was raised the eighteen inches. That it was seriously
injured sometime after it was built, is certain ; but we have no pre-
cise evidence as to the quantity of water which escaped through or
over parts of it at the time of its erection we must get at this as
well as we can. When a dam is built, the presumption, perhaps,
is fair, that it was intended to be water-tight. But you may take
all the circumstances into consideration the state of the river
the material of which the dam was composed the manner of its
construction, &c., to ascertain how great the inundation was above,
at the time the dam was raised eighteen inches. What evidence
have we of the comparative height of the two dams, and the height
to which the water was swelled upon Freedley ?

1. We have the measurement made of the dams themselves.
Two witnesses swear that they measured from what they believe to
be the top of a part of the old dam to the top of the new dam, and that
the new dam is but four and a-half inches higher than the old. The
weight of this evidence is for the jury,

*i-in-i *2. We have the measurement of the loss of head. Mr.
-" Knaus says there is, by actual measurement, a loss of head
of six inches.

Larer estimates the loss of power by the swelling of the water
by the new dam at about one-third of the whole power. Charles
Axe and Christopher Heebnergive evidence very much to the same

3. The actual state of the water upon the rock below the sheet-
ing of Freedley's mill, at present and before the new dam was

Then, if the jury determine that the land of the plaintiff is inun-
dated by the erection of the new dam, what is the damage suffered
by the plaintiff?

The claim set up is as follows :

1. For the permanent damage of the property, the plaintiff is
entitled to be made whole. The defendant, by law, may inundate
the plaintiff's land, but, if he does so, the plaintiff is not to be the
loser, nor is he to make a speculation out of it Then what will
make him whole in this particular ? What is the value of what
he has lost ? Whatever it is he is entitled to a verdict for and
no more.

2. The plaintiff alleges that, at the particular time when the new
dam was raised, he had on hand a quantity of rye, from the grind-
ing and sale of which he would have made a certain sum, had the
dam not been raised, but which he lost in consequence of the back-


[Schuylkill Navigation Co. r. Freedley.]

ing of the water on him. If the jury are satisfied of the fact, they
should compensate the plaintiff for the loss thus sustained.

3. The plaintiff also claims the amount of expenses which he
necessarily incurred in altering his mill, in consequence of the
backwater. This is also a good ground for claim, if the jury believe
the facts made out by the evidence, and have not included it in
their estimate of permanent damages.

Having estimated the injury, if any, which the plaintiff has sus-
tained, the jury will then examine whether the plaintiff has derived
any advantage from the erection of the dam ; if his property is
benefited by the improved navigation ; if he can get boats to his
mill with greater facility than he did before, you must estimate the
value of such advantages, and deduct it from the amount of injury.
But it is averred by the defendant that the dam was erected at the
request of the plaintiff that it would not have been done but for
this request and agreement of the plaintiff. If this were proved,
the plaintiff could not recover, be his loss what it might. If he
requested it to be done, and it was done, he could have no right to
complain. But what is the evidence? Michael Towers says, while
he was at work at the dam, Jacob Freedley expressed to him a wish
that the dam might be raised from four to six inches ; that it would
help him to get into his mill with boats. Witness thinks this was
at the dam. Holloway says in 1836, when they were building
the dam, Freedley frequently asked him whether the company con-
sidered how much *higher they would raise it than the old r*iiq
one. He said he would like they would raise it six inches *
higher than the old dam. in order to enable him to get up to his
mill with loaded boats. He said six inches would be a great accom-
modation to him in getting up with his boats and not injure him
otherwise. He said, at the same time, he would not like it to be
raised more than six inches. Now there is no evidence that this
was ever mentioned to the company, or that they ever knew of
it, or acted at all in consequence of it. Such being the case, it
cannot be considered as an agreement, nor in any respect as a
bar to the plaintiff 's action. But if it be true, it is evidence for
the purpose of showing what idea the plaintiff himself had of
the damages that would be done him by a rise of six inches on the
dam. If the plaintiff did thus frequently express himself, cer-
tainly it is of considerable importance in the case, but only in
the point of view in which I have put it, that is, to show the
estimate which the plaintiff made of the damage which would be
done or the advantage which would arise to him from the erection
of the dam.

The following errors were assigned.

1. The court below (after charging the jury that the plaintiff was

113 SUPREME COURT [Dec. Term,

[Schuylkill Navigation Co. v. Freedley.]

entitled to be made whole for the permanent damage done to his
property) erred in charging the said jury as follows. 2. The plain-
tiff alleges that at the particular time when the new dam was raised,
he had on hand a quantity of rye, from the grinding and sale of
which he would have made a certain sum, had the dam not be^n
raised ; but which he lost in consequence of the backing of the
water on him. If the jury are satisfied of this fact, they should
compensate the plaintiff for the loss thus sustained.

2. The said court erred in charging the jury as follows. 3. The
plaintiff also claims the amount of expenses he necessarily incurred
in altering the mill, in consequence of the back-water. This is
also a good ground of claim if the jury believe the facts made out
by the evidence, and have not included it in their estimate of per-
manent damages.

Mr. Tilghman, for the plaintiffs in error, cited Schuylkill Naviga-
tion Co. v. Thoburn, 7 S. & R. 411 ; Shrunk v. Schuylkill Naviga-
gation Co., 14 Id. 71.

Mr. Freedley and Mr. Meredith, contra, cited Caruthers v. Dun-
ning, 3 S. & R. 373; Oliphant v. Smith, 3 P. & W. 180; Cres-
well v. Clugh, 3 Watts 330 ; Lehigh Bridge Co. v. Lehigh Coal Co.,
4 Rawle 28; Sauerman v. Weckerly, 17 S. & R. 116; Scott v.
Sheakly, 3 Watts 50.

*1141 *The opinion of the court was delivered by

HUSTON, J. I have been so much struck by some things
appearing in this case that I will mention them though not the
reason on which our decision must be made.

In January 1832, on proceedings to recover damages occasioned
by a former dam, the company paid $800, the sum at which the
damages were appraised. No person has stated to what point at
the complainant's mill this dam raised the water. Either it was
badly constructed or it was somehow injured, for it is in proof that
it leaked in a year or two from one end to the other ; and in 1834
or 1835 it sunk about the middle from eighteen inches to two feet ;
so that in 1836 it became necessary to build a new dam. Witnesses
who saw it while it was leaking, or when sunk, tell us that the
water was ten inches, or, as some say a foot, arid others fourteen
and fifteen inches below its present height. Now as the company
paid for all damages done by it when not leaking and not sunk,
they are only liable for any damage done by raising the present
dam higher than the former as it stood when first erected ; and the
old dam might have been repaired so as to be of an uniform height,
and so as not to leak and no damage to Mr. Freedley damages to
that height had been paid for. This would have raised the water


[Schuylkill Navigation Co. v. Freedley.]

above where it stood in the dilapidated state of the dam, and would
have brought it to within five inches of its present state; for the
proof seems full, and certain, and indisputable, that the present
dam is not five inches higher than the former one. And it seems
to me strange that any weight should be allowed to conjectural
opinions in opposition to actual measurement. It is not forgotten
that in 1836 the winter crops in much of this state, and in some
other states, failed in a manner, to occasion much distress, and to
raise very much the price of wheat and rye ; if not sworn to I
would not have believed that the scarcity was so great as to enable
a man to sell rye bran at a dollar per bushel. Mr. Freedley is
stated to have purchased a quantity of rye from men in Hunting-
don and Mifflin counties, at from $1.25 to $1.31 per bushel, and
that in the spring of 1837 he was making great gain by selling rye
meal at $2.00 per hundred pounds, and bran of rye as above stated ;
and the court say, u It is alleged that at the particular time when
the new dam was raised, he had on hand a quantity of rye, from the
grinding and sale of which he would have made a certain sum, had
the dam not been raised, but which he lost in consequence of the
backing of the water on him : if the jury are satisfied of the fact,
they should compensate the plaintiff for the loss thus sustained."
This part of the opinion is alleged to be error, and we think not
without cause.

Without recollecting that unless ruinous dams are repaired, the
produce of Hollidaysburg and Mifflin will not come to this market ;
for the land carriage will be equal to the price ; and without notic-
ing *that if the dam, and during 1837 the coffer-dam, had r*-iir
not been there, Mr. Freedley could not have sent his meal *
to market by the canal below ; there are other considerations which
forbid the allowance for the item of damages here claimed and
allowed. Whatever is a great benefit to a large portion of the
community, results though not so immediately, in a benefit to the
whole community ; and if in the attainment of this general good,
some little inconvenience is sustained by some persons, this is not
the subject of action, nor does it entitle to damages. Houses are
burnt down, or fall down, or become ruinous, and are to be rebuilt.
The stone, and brick, and lime, and mortar, and the carriages, and
drays, and workmen, occasion considerable obstruction in the street,
und some annoyances to those living adjacent, yet it would not do
to subject the owner to a suit because some one had purchased a
fresh supply of goods, and alleged that men, and especially ladies,
would not come to buy, and therefore he had lost the profits he
expected. The loss alleged is the profits on a speculation in rye ;
but the company are not liable for such losses. Mr. Freedley knew
they had begun to rebuild the dam, and were bound by their duty
to the stockholders and to the community to go on and complete it.

115 SUPREME COURT [Dec. Term,

[Schuylkill Navigation Co. v, Freedley.]

Neither the objects for which the company were incorporated, nor
their duty, nor common sense, required that all the navigation
should continue interrupted and suspended because one person had
made a speculation in grain.

It was long ago settled in this court that the company were not
liable for speculative damages, or profits which any person supposes
he might have made if no canal had been constructed. Common-
wealth v. Thoburn, 7 S. & B. 411.

On the principle adopted in this case, suits might be brought, if
the navigation was at any time interrupted, and men would allege
that produce fell, and so they sustained loss ; and this loss would
depend on the state of the market. But this is not all. There
would be no means of ascertaining the amount of the loss, or the
real cause of it. I know one man who would not sell his wheat
that year because he could not get more than two dollars a bushel
for it : and next year he got one dollar. Mr. Freedley's profits
ceased, in part at least, about the first of July, when rye and wheat
ripened ; and yet his witnesses, and I am afraid the jury, carried it
on to December.

The matter, and the only matter to be decided, is, what was the
real damage to that mill in ordinary events by raising the water as
it was raised by that dam ; and not how much of Mr. Freedley's
profits, from an accidental rise in the price of rye, accrued at that
time. And in order to ascertain this, the jury must ascertain how
much it was raised. If only raised five inches or less, there is an
end of calculations about losing a foot or fifteen inches.

His mill is an overshot ; he uses the same wheel, and although

*11fil ^ ** 8 wno ^7 raised seven inches, yet the water comes into

- the top buckets as it did before. He had then lost no

power ; for only ignorant people talk about water in a breast or

overshot producing any effect except by its weight.

As to the request by Freedley to the contractor to raise the dam :
I think the matter requires a more precise statement. Was the
dam by the directions of the company to be raised to a certain
height? Was it raised above that height? and if so, did the con-
tractor add to its height at the request of Mr. Freedley ? If so,
is the company liable although the contractor never told them of
Freedley's request, or that he had complied with it? If built
according to the plan of the engineer, and the directions of the
company, it seems not material what Mr. Freedley wished or said ;
but if it was raised in consequence of his request, it would seem
not material whether it was so raised by the contractor with or
without the direction of the company.

Judgment reversed, and venire de novo awarded.

Cited by Counsel, 7 Barr 355 ; 2 Wright 285 ; || 10 W. N. C. 150.||


[Schuylkill Navigation Co. v. Freedley.]

Cited by the Court, 4 W. 4 S. 376 : 3 Casey 104.

See ante 45.

|| The measure of damages is the difference between the market value of
the land as affected by the injury, and such value as unaffected; the pro-
perty to be valued without reference to the person or owner, or the actual
state of his business. Harvey v. Railroad, 1 1 Wr. 428 ; Shenango Railroad
v. Braham, 29 Smith 447 ; Philadelphia v. Linnard, 10 W. N. C. 148.||

Commonwealth against Watmough. [*in


1. In an action against a sheriff for an alleged false return of nuJla bona
to a writ of fi. fa., by which he was required to levy upon certain bank
stock, standing in the name of A., the defendant in the execution ; it wax
held, that A. was a competent witness to prove that the stock was in fact
purchased with the money of his brother, and that he had sold it to B. before
tne fi. fa. issued ; although he (A.) had agreed to indemnify C. for being
security to the sheriff for not levying on the stock; C. having executed a
release to the witness.

2. Stock in a bank, or other corporation, standing in the name of a
defendant in an execution, is not liable to be sold as his, under the act of
the 29th of March 1819, if it actually be the property of another.

3. A., a stockholder in the Bank of the U. S., sold his stock on the 22d of
April 1836, taking from the purchaser his promissory note at 60 days ; and
on the same day executed a power of attorney to transfer it. On the 6th of
May 1836, a levy was made upon the stock, which still stood in the name
of A., by the sheriff, by virtue of a fi. fa. against A. Held, that the stock
was not liable to execution ; although the rules of the bank required trans-
fers of the stock to be made in the presence of an officer of the bank.

4. A sheriff is not bound to levy upon personal property alleged to belong
to the defendant in an execution, upon an offer by the plaintiff to indemnify
him. Unless it appear in an action against him for a false return, that the
property actually belonged to the defendant in the execution, the offer to
indemnify him will not make him liable to damages.

ERROR to the District Court for the City and County of Phila-

This was an action of debt upon the official bond of the sheriff
of the city and county of Philadelphia, brought in the name of the
Commonwealth of Pennsylvania, to the use of John C. Bergh and
John P. Arcularius, copartners, trading under the firm of Berg &
Arcularius, against John G. Watmough, Esq., George W. South,
and Isaac Heylin.

*The plaintiffs declared generally upon the sheriff's
bond ; to which the defendants pleaded performance, as
respected the persons to whose use the suit was brought.

The plaintiffs replied ; assigning breaches as follows :

" And the said plaintiffs, by Samuel H. Perkins, their attorney,
say, that they the said plaintiffs by reason of anything by the said

117 SUPREME COURT [Dec. Term,

[Commonwealth v. Watinough. |

defendants in their plea alleged ought not to be barred from having
and maintaining their aforesaid action thereof against them, the
said defendants, because they say that whereas they, the said plain-
tiffs, heretofore, to wit, on the thirtieth day of April 1835, in the
District Court for the city and county of Philadelphia, by con-
sideration and judgment of the said court, recovered against one
Joshua T. Seal, the sum of seventeen hundred sixty-nine dollars
and forty-four cents, which was adjudged to the plaintiffs in and by
the said court for their damages by them sustained, as well on
occasion of the not performing certain promises and undertakings
before them made by the said Joshua T. Seal to the said plaintiffs,
as for their costs and charges, by them the said plaintiffs about
their suit in that behalf expended, whereof the said Joshua T. Seal
was convicted : as by the record and proceedings thereof still
remaining in the said court more fully and at large appears. And
the said plaintiffs further say that the said judgment being in full
force, and the said damages remaining unpaid and unsatisfied, they
the said plaintiffs, on the seventh day of March eighteen hundred
and thirty-six, for the obtaining satisfaction thereof, sued and pro-
secuted out of the said court at the county aforesaid, a certain writ
called an alias fieri facias, directed to the sheriff of Philadelphia
county, by which said writ the Commonwealth of Pennsylvania
commanded the said sheriff as before they had done, that of the
goods and chattels, lands and tenements of the said Joshua T. Seal,
in his, the said sheriff's bailiwick, he should cause to be levied
seventeen hundred and ninety-two dollars eighty-three cents, which
to the said plaintiffs lately in the said court were adjudged for
their damages which they sustained as well by occasion of the non-
performance of a certain promise and assumption by the said Joshua
T. Seal, to the said plaintiffs at Philadelphia, in the county afore-
said made, as for their costs and charges by them about their suit
in that behalf expended, whereof the said Joshua T. Seal was con-
victed, as appears of record ; and that he should have that money
before the judges of the said court at Philadelphia, at the said
court there to be held the first Monday of June then next, to
render to the said plaintiffs for their damages aforesaid : and that
the said sheriff should have then there that writ ; which said writ
afterwards, and before the delivery thereof to the said sheriff, as
hereinafter mentioned, was duly endorsed with a direction for him
the said sheriff to levy seventeen hundred sixty-nine dollars forty-
*111TI * our cents ' besides interest and costs ; and *which said writ
J so endorsed, afterwards and before the said return thereof,
to wit, on the 6th day of May eighteen hundred and thirty-six, at
the county aforesaid, was delivered to the said John G. Watmough ;
who then and from thence until and at and after the return of the
said writ was sheriff of the said county of Philadelphia, to be executed


[Commonwealth v. Watmough.J

in due form of law. By virtue of which said writ the said John G.
Watmough, 30 being sheriff of Philadelphia county, as aforesaid,
afterwards and before the return of said writ, to wit, on the day
and year last aforesaid, at the county aforesaid, seized and took in
execution divers goods and chattels of the said Joshua T. Seal, of
great value, to wit, of the value of the moneys so endorsed on the
said writ, and directed to be levied as aforesaid, and then and there
levied the same thereout. Yet the said John G. Watmough, so
being such sheriff of Philadelphia county as aforesaid, not regard-
ing his duty as such sheriff, but contriving and wrongfully and
unjustly intending to injure, prejudice and aggrieve the said plain-
tiff in that behalf, and to deprive him of the said moneys so endorsed
on the said writ and directed to be levied as aforesaid, and of the

Online LibraryPennsylvania. Supreme CourtReports of cases adjudged in the Supreme court of Pennsylvania, in the Eastern district [Dec. term, 1835 - Mar. term, 1841] (Volume 6) → online text (page 13 of 75)