Gallagher v. Kemmerer

Citations

• 144 Pa. 509
• 22 A. 970
• 1891 Pa. LEXIS 636

Syllabus

<p>1. Where an injury as a whole to lands, is the consequence of independent acts of trespass on the part of two or more persons, each act is a distinct cause of action for the portion of the injury resulting from it, and together they do not constitute a joint trespass.</p> <p>(а) In trespass for injury to plaintiff’s lands, it was shown that refuse and waste from defendants’ coal-breaker, on their own lands, were carried down the stream, filled the bed thereof, overflowed, and accumulated upon plaintiff’s bottom-land, rendering the same unproductive and worthless.</p> <p>(б) It was made to appear that a portion of the accumulated refuse, fouling the stream and injuring the plaintiff’s land, had come from the coal-breaker of another company operating independently, on their own lands, on the same stream, and above the coal-works of the defendants:</p> <p>2. The liability of the defendants sued began with their own act on their wn land; and, being independent of the acts of the other operators, it was several when committed, and did not become joint because the general consequences were united: Little Schuylkill Co. v. Richards, 57 Pa. 142.</p> <p>3.. Wherefore, the defendants were liable separately for the results of their own act, though difficult of exact ascertainment; and they were not discharged by a prior quit-claim and release executed by the plaintiff to the upper operators, for all injury done by them in their operations.</p> <p>4. A witness, called to testify as to damages to lands, being but thirteen years of age when the injuries complained of were committed, and then without definite knowledge of the lands, was incompetent to testify as to the extent to which the market value thereof was affected.</p>