Marshall v. Hershey

Citations

• 185 Pa. 238
• 39 A. 887
• 1898 Pa. LEXIS 699

Syllabus

<p>Waters — Diversion of water — Bes adjudicata.</p> <p>In an action of trespass by a lower against an upper owner of lands on a stream to recover damages for diversion of water, plaintiff testified that about twenty-four years before the litigation was begun water had been diverted to defendant’s mill by a race, and that plaintiff received water through the embankment by a wooden pump stock with a bore of two and one half inches, which at times furnished a sufficient supply; that this pump stock had been removed ten or twelve years before the trial; that after its removal plaintiff obtained his supply of water by means of a ditch, and that defendant had finally shut off the supply altogether. Plaintiff obtained a verdict, after which defendant opened the ditch, and a few weeks later closed the ditch and placed a pump stock with a bore of two and one half inches through the embankment. In a second action defendant offered in evidence plaintiff’s testimony in the first action, and claimed that he was furnishing water according to the standard set up by the plaintiff. It appeared that the supply which plaintiff received through the pump stock was entirely inadequate for his needs. Held, that there was nothing in plaintiff’s testimony, on the trial of the first action to justify the trial judge on the trial of the second action, in submitting to the jury the question whether plaintiff had set up a standard by which the water should be measured out to him through a two and one half inch pipe.</p>