Miller v. Hanover & McSherrytown Water Co. , 240 Pa. 393 ( 1913 )

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 distribution 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.