Alexander, 2 Rawle 83 (Pa. 1828)

The opinion of the. court was delivered by

Gibson, C. J.

— It is supposed, that an-inconsiderable .injury from a nuisance, is an insufficient cause of action. t Admitting the propriety of the judgment in the particular cases'that have befen cited in support of the position, I am unable to concur in the reasons of the judges, -who seem to have thought, that the right to recover at all, depends rat.her on the extent than the nature of the injury. The true distinction seems to be, between cases where the injury is remote and common to many, without particular damage to any one, and those where it is proximate in its effect, and confined to particular persons. For- injuries of the first class, it is proved by the authorities collected in Com. Dig. Action B, 2, that an action does not lie. And of this class are the cases citfed from the New York and Massachusetts Reports, as well as the case of Shrunk v. The Schuylkill Navigation Company, 14 Serg. & Rawle, 74, which was an action for'obstructing the passage offish, by which the plaintiff’s fishery was destroyed. And there is sound reason for the distinction. All persons have a natural right to the use of water flowing over their land. But if each were answerable to all the rest for. consequences that are in. a greater Or less degree inseparable from every exercise of the right, the benefit of the' stream would be lost toajl; for no one could use'it without producing a diminution of its quantity by consumption, or evaporation, or an irregularity in the flow of it by retention. The law,, therefore, requires each to bear with the consequences of a reasonable use of it by his neighbour. But these consequences, instead of being slightly injurious, may be destructive of valuable natural- advantages. The consumption of but a small portion of the stream, might, by rendering the residue insufficient for the purposes of a mill, destroy a valuable site; and, the retention of the water for but short intervals, would render the stream useless to a furnace, the operations of which, cannot be intermitted. But this would-not give a claim to the value of the sité in damages. So, an' action will not lie for the destruction of a fishery from an erection which prevents the passage of the fish.

In .these cases the injury is remote, the party having no property in the water used, or retained, nor in the fish before they are caught; and it is general in its consequences to all occupants of the stream,, similarly situated. But to flood the land of an adjoining occupant, is not necessary to the enjoyment of any natural right. The injury produced by it, is out of the common course, and done to an individual; and whether it be great, or whether it be Small, is a consideration that can affect only the quantum of the damages.

In the application of the principles connected with the remaining point, there may, perhaps, be greater difficulty.

Before the dam was erected, the -terretenant of the land now owned by the plaintiff, objected to its being erected, as being likely to prove injurious to hint. From that time to the inception of-this action, neither he nor- his successors, testified any dissatisfaction, usually grinding their corn at the mill, and some of them declaring, that the dam did the place no injury; and one of them being-present when the mill was purchased by the defendants, omitted to give notice of the:existence of the injury for which damages are sought, and to declare his determination to insist on hqving it removed.

The equity attempted to bo deduced from these circumstances, depends on distinct considerations. Against the original author of a nuisance, no forbearance to sue, short of the period which, in analogy to the statute of limitations, has been assumed as'conclusive in the case of an adverse occupancy of a water right, can be set up as a bar; and as the dam was erected in 1810, it is impossible that there can have been & forbearance for twenty years. Nor- can this period be abridged by the interference of a purchaser, who has no reason to infer, from a forbearance for a considerable time, a determination to forbear for ever. Such a purchaser, voluntarily, and with full knowledge, takes the place of a wrongdoer, and stands in no higher equity. He, therefore, has no.right to be informed, that the suffering party has not abandoned his rights. But a positive act, calculated to induce him to purchase, would place him on higher ground; and were, it shown, that he purchased here on the faith'of declarations by the plaintiff’s predecessors, that the dam was not injurious to them, I should hold the merits of thé cause to be with him. But that circumstance was not an ingredient in the case submitted to the court, nor is any thing of the sort to be found in the evidence. The. defence, then, rests exclusively on the effect of Ehenezer Kerr's silence at the sale; for if the circumstances which I have just mentioned, be insufficient to raise an equity, considered separately, they will be insufficient in conjunction with other circumstances, which separately are also insufficient.

Undoubtedly, there are cases where the mere concealment of tlie title of a third person, may be fatal to his right; and this principle may, according to circumstances, be applicable to the case of a nuisance, caused by an erection on the property purchased. Where the existence of the nuisance is not self-evident, it may unquestion

ably be the duty of the party injured, to apprize the purchaser of the responsibility to which he is about to subject himself. But while courts of justice have, on the one hand, endeavoured'to repress, dishonesty, they have, on the other, exacted the utmost vigilance and caution. It is difficult to imagine, how the-concealment of a fact, which an individual of common prudence and sagacity would discover, can constitute a fraud. It is a clear elementary principle, that the law imputes to the purchaser a knowledge of every fact, of which the exercise of ordinary diligence would have put him in possession. Newl. Cont. 5-11. And, such an imputation of knowledge is sufficient to rebut the inference of a merely constructive fraud, which might otherwise be implied from the silence of a party.. Even a positive misrepresentation which, when it induces a careful man to forego .an inquiry that would have resulted in full knowledge, constitutes positive fraud,, even where the means of information is not exclusively within his reach, will, nevertheless, not give him an equity, if he had, in fact, a knowledge.of the true state of the case, derived from other sources, because he was in truth not deceived. It is also a familiar rule, that notice is unnecessary, where the fact is equally within the knowledge of both parties; which it.must be taken to be, where the sources of information are equally accessible to both, and'the state of the fact is obvious to the senses. These are elementary principles, about which, I presume, there is no dispute; and what evidence is there in the case, that would induce a chancellor to enjoin the plaintiff from proceeding at la-wB ‘ ■

It does not appear, that the plaintiff’s grounds were inundated while the stream was at low water mark; and hence, it might seem, that the injury was only occasional, and that the traces of it were-not permanently Obvious. But the water was swelled in the channel within the plaintiff’s boundary, even when the dam was not full, and the grounds exhibited permanent marks of injury from high water; ponds being formed, the soil washed away in some places down to the gravel, and the fields sanded, and covered with drift wood. It is in reference to the existence of an injury such as this, that the silence of Ebenezer Kerr is supposed to constitute a fraud.

The defendants were, unquestionably, bound to inspect the subject of their purchase; without which, they would become chargeable with gross negligence, which is equivalent to actual knowledge of whatever a personal examination would have disclosed,, or put within the range of detection. The slack water extending from the dam to a point within the plaintiff’s boundary, and the marks of injury to the grounds, were amply, sufficient to put them on their guard; and, as the direction of the court is to. be considered in reference to the case appearing on the evidence,- it seems to me, there was no error in charging, that the silence of Ebenezer Kerr at the sale, ought not to prejudice the plaintiff’s claim to damages in. this action, ■ -

Huston, J.

— In. this, as in most cases, it is necessary to attend minutely to facts and dates, in order to understand the opinion of the court.

Daniel Herbert, in 1786, purchased a tract of land, and resided on it until 1813, when he sold it to William Gilmore. On the 26th of August, 1820, Gilmore conveyed it to Ebenezer Kerr. It was •stated and conceded, that though the deed was made in 1820, yet, articles had been entered into, and possession delivered to Kerr several years previous. In 1824, Ebenezer Kerr sold to William Kerr, the plaintiff below., The land lay on Charteirs creek. •

T. Jllgeo owned some land on the same creek, below the above-mentioned tract, and erected a mill, about 1809, on it. Herbert, who then owned the plaintiff’s land., told JLlgeo, that if the.dam he was erecting should swell the water so as to injure his (Herbert's,) place, he would bring suit against him.' Herbert, however, lived there four years, and never did bring suit, nor complain of injury.' On ■the contrary, it was proved, that he said the dam did no injury; for that although it swelled the water higher when a flood was in the creek, yet it lessened the rapidity óf the current, and his banks were less injured. . Several years after the mill' was built, an additional water wheel put in and another pair of stones. JLlgeo died, and •his executors sold the mill-and thirteen acres of land, at public vendue, for eight thousand eight hundred and fifty dollars. Ebenezer Kerr, who then owned the plaintiff’s land, was at the sale, and gave no notice. All the witnesses agreed, that without the mill, the ■thirteen acres were hot worth three hundred dollars. The proof was, that the defendants had paid all hut.about three thousand dollars of the purchase money, before this suit was brought. ■ The plaintiff’s counsel alleged, they had not paid so much. The deed from the executors to the defendants was not produced, but it was said to contain no warranty as to. water right. The.defendants have refused to pay any more money until this is settled. Much testimony was given to prove,, that the plaintiff’s land was overflowed at high water, before the mill was erected: That a breast work had been built thirty years ago, to keep the water-from running through .the bottom land, and the flood carried it away immediately: That this creek overflows and injures the bottom land on other farms where no dam was near themj and that several have been injured much more than this.

There was no proof that this tract is injured, except in time of floods; but.there was proof, that it had been overflowed in part,.and injured repeatedly within ten years; and that floods had, in one or more places, carried off the soil loosened by the plough.

' It is not to be forgotten, that the dam was not opposite the plaintiff’s land, but was one hundred and eighteen perches below the pláintiff’s lower line. So that in examining the breast and ends of ■the dam, the plaintiff’s land would not be in view. No part of the premises bought, touch, or come near the plaintiff. It is a conse

quential injury, not constant and visible at all times; but occurring only when high floods-occur; and that injury not discoverable from an examination of the premises bought by the defendants. .

There was much contradictory testimony, whether any injury at all had been done to the plaintiff’s land. And the court told the jury, that if they could not decide from the testimony, whether there was, or was not, any damage to- the plaintiff, they ought to give credence to those opinions which appear to be founded on the soundest principles of philosophy, and the natural consequences that must be the result of the circumstances that have been testified to. I will only say, this is to me new ground, and I think most dangerous. Whether a flood will carry away soil, or leave a deposite, cannot, I believe, be ascertained beforehand, by those who have viewed the ground, even while covered with water; and the testimony of one witness, who saw it after the flood, and who testified, that no soil was washed away, but that the flood left a deposite on the ground, would outweigh all the reasonings of all the philosophers in the world. I do not say there is no case in which a witness may be disbelieved, because his testimony is contrary to the nature of things; but I protest against introducing speculations of philosophy, to overrule positive testimony of plain, honest, men. 'The principal questions in this case, arose on the effect to be produced by the declarations' of Herbert and Gilmore, under whom the plaintiff claimed, and the silence of E. Kerr, who was at the vendue, and gave no notice;-who saw thé defendants buy for eight thousand dol-0 lars; and who, as the plaintiff contends, had the right to reduce the property to- be worth only three hundred, and Who did not mention this right of his. The judge says, “he had his deed recorded, and they must look'-to that, and he was not bound to give notice.” But it is obvious his deed could not give any information on the subject of the water rising, or that when it rose, it .overflowed its banks. The judge says, “there is no evidence that the defendants ever heard, that Herbert and Gilmore said, it did not injure this land; but,” he says, “ they were bound to inquire.” Now, if they did inquire, they heard what would have induced them to purchase. But after a-dam had stood many years, after the plaintiff’s lands had changed owners three times, and no complaint, the then owner being present, was bound, by every principle of justice,-to make known this concealed claim of right of'his to puli down that dam, and render the property of no value.

It ought not to be forgotten, that in newly settled parts of- the country, he Who builds a mill, is considered as doing a great benefit to the neighbourhood. .If it is true, that he may be not only permitted, but encouraged to build; that all the owners of adjoining lands may expressly or tacitly agree, and yet, when the mill has become valuable, the vendee of any of those who agreed to its being built, nay, the fourth vendee, when none of prior owners had objected, may compel him who built it, or his children, after his death,

or the purchaser of what the builder and his children had enjoyed in peace, to pull down the dam, it is time this should be known. It is said, this matter has not been decided; that it is only to be found in elementary writers. This is a great oversight. I should suppose one hundred cases could be collected in a short time. I shall mention a few from the English books, and will only add, that the modern cases are not contrary.-

2 Jltk. '83. Where a pian has suffered another to go on building upon his ground, and-not' set up a right till afterwards, when he was all the time-conusant of his right, and the person building had no notice of the other’s right, chancery will oblige the owner of the ground to permit the other to enjoy quietly ánd without disturbance.

3 Jltk. 692. Tenant for life makes a lease for sixty years; tenant rebuilds the houses at a great expense, and assigns his lease. In the twenty-ninth year tenant for life died; the tenant in possession paid the rent for six years to the remainderman; and in the mean time made additional buildings. Remainderman brought ejectment and recovered; and an injunction granted, because the remainder-man stood by and saw tenant rebuild and gave no notice; and because he accepted.rent while tenant was adding additional buildings and gave no notice. Here a title good at law, and a recovery at law, were postponed; and yet it might, with some colour, have been said, the tenant was bound to inquire into the title of his landlord; this, however, was not sufficient to protect the legal owner, who was estopped by-his oivn silence.

Rice v. Potts, Precedents in Chancery, 35. A. was tenant in tail, remainder to B. in tail. A., not knowing of the remainder, made a settlement on his wife by way qf jointure; this was engrossed by B., who knew of the entail, but was .silent. After the death of A., B. brought ejectment, and recovered against the widow. She was relieved in chancery, and a perpetual injunction granted. 2 Vern. 150. .

2 Johns. Rep. 589. Thompson, Justice, in delivering the unanimous opinion of the court, says, “ Though it does not appear that B. took any agency in the negotiation, yet his presence and silence are equally efficacious and binding on him, if the complainant was thereby misled and deceived. There is an implied as well as an express assent; as, when a man who has a title, and knows it, stands by and either encourages or does not forbid the purchase, he and all claiming under him shall be bound.” And he quotes, with approbation, the sentence in equity; “therefore, when a man has been silent when in conscience he ought to have spoken, he shall be debarred from speaking when conscience requires him to be silent.” In this case, too, a legal title was postponed.

The decisions of our own courts are also strong on this subject.

Covert v. Irwin, 3 Serg. & Rawle, 289. Land was selling by the sheriff as the property of T. Proctor. Covert was in posses

aion of the land, claiming it as his own; hut it had been somehow-reported that he was in under Proctor■; he was present at the sale. The opinion of this court, delivered by the late Chief Justice, was, “ I think the court were right in the opinion,- that if Covert did stand by, knowing that >he was represented as Proctor’s tenant, and not contradicting it, he could not afterwards contest the title of Proctor with/the purchaser.” In this case E. Kerr stood by and saw this mill selling, with the dam as it is now; if he did not make known his claim oí a right to compel it to be taken down, I do not see how he can, or why he ought to be permitted to assért that right'now. ' •

Billington v. Welsh, 5 Binn. 139. Welsh had purchased and paid for fifty acres of land, part of a tract of Turner’s, on which was a forge, &c. &c., had built a house' on it, and was living there; he was a brother-in-law of Turner’s. The whole tract was levied on as Turner’s, advertised several times, and at length sold. Welsh knew well of the.-advertisement. The cause was tried before Judge Yeates, who told the jury that if Welsh knew of what was going on, he ought to have given notice of his claim to the sheriff, and warned all persons against purchasing; failing herein, a legal fraud would be'imputed to him. On appeal this was affirmed. Chief Justice Tilghman says, “it became his duty to make known his secret title to part of the land; he gave no notice: not having done so, he acted at his peril, and has no right to complain if his title is impeached by persons who had not actual notice of it.” When we consider the law of levies, and sheriff’s sales, that a plaintiff can take only what is the defendant’s, and that a-purchaser buys at his-peril, that case is much stronger -than this.

1-3 Serg, & Rawle, 167, is a late case, and the principle is fully recognised. The sheriff was selling a tract of land on the oldest judgment, but notice was given at the salé that it would be sold subject to a younger mortgage. The purchaser refused to pay the mortgage. This court held, that although it could not legally be sold subject to the mortgage, yet as the- purchaser, who was thé plaintiff at whose execution it was sold, was. silent, and did not •make known his opinion, that the purchaser would hold it clear of the mortgage, he could not keep the land without paying the mortgage; his silence was considered equal to his express agreement, that it should be , sold subject to the mortgage; and that silence cost him bis debt.

The case in 8 Serg. & Rawle, 93, is nearly in point. A dispute arose as to the right to use an alley in Philadelphia. The court were of opinion against the right of the pláintiff; it had been conveyed by one whose right would not authorize such a conveyance; but the alley was used by all those living in the court. The plaintiff bought, and though by a close examination of the deeds it could be-discovered that her title to the use of the alley was not good, yet she recovered against the defendant for disturbing her in- thq

use of it, on the ground that when she bought she saw those who lived in. the court actually using the alley. “ Shall,” says the Chief Jus,tice,■“ the defendant be permitted to hold out false colours to the injury of innocent purchasers? Is not the case'as strong against 'him as against a prior mortgagee who is privy to a second mortgage and conceals his own.”

Let us now look at the matter on principle. . Admit that Herbert might have sued and recovered damages; he would not, he did not; but he sold to Gilmore. What did he sell? his land as it then was, with the dam erected. Gilmore not Only did not claim a right to pull down the dam, but he did not wish for such a right; he said it did him no harm. Clearly, he did not sell to E. .Kerr, nor did E. Kerr possess the right to compel Jllgeo or Jllgeo’s heirs to pull down this dam. He lived there some eight or ten years; stood by , and saw it sold, for twenty times its válue, if the dam were, removed; he gave no notice, because he had nó right, or because he was determined never to use it; and theipresent plaintiff is as much bound as he was..

It has, however, been argued, that if notice- is given before all the purchase money is paid, a purchaser is not protected. As to the fact, the proof is not contradicted by any proof, though it was by the statement of counsel,-that abpve four thousand dollars had been paid, and something more than-three thousand dollars remained due; and Sugdén was cited to prove the position, that if notice is given before the deed is executed, though all the money is paid, or before all the money, is paid, though after the deed is executed, the purchaser is not to be considered as an innocent purchaser without notice. Admitting, for the present, what I do not agree to without qualification, that the law is so settled, it will be found to apply to cases where the notice was given as soon ás the purchase was heard of, and has río relation' to. cases where a man s’topd by and saw a ' contract made, possession taken, a great part of the money paid, and a deed received,- without those, clauses which would have been required if notice had been given. It can only apply to cases where he who gives.the notice did not know of a bargain proceeding. The law is not so absurd as to permit a man to see a sale made, and nine-tenths of the money paid, possession taken and kept for years, the money paid to executors, and by them to creditors or heirs, and irreclaimable; and, after all this, consider his conduct fair, if he gives notice before the last ten dollars are paid.

But even Gilmore, if now in possession, and owner,'could not, on the testimony given, support a suit against Jllgeo, if alive, although Herbert did tell Jllgeo that he would sue him if the dam injured his place; yet he afterwards said it <Jid him no injury, and he did not sue. Gilmore purchased, and said - it did him no injury; and, after this, Jllgeo put another water wheel and additional stones in the mill,, and increased its value at great expense. It would -have been a fraud in him to have required afterwards that all

this should be destroyed; and if he had recovered at law, chance- . ry would have granted an injunction. Many of the cases cited prove this; and there is another in 2 Eq. Ca. Ab. 522., and cited and approved in Harrison’s Chancery, 172. A. sees, pipes laid at great expense, and makes no objection; afterwards he sues, and chancery granted an injunction. In fact, the principle is the same whether a man is permitted to improve at a great expense,- or purchase at a high price; in neither of which cases can a man, who has permitted the alleged nuisance to stand many years without objection, and who sees additional money expending, without objection, be heard, .when he afterwards applies to a court to render the improvements or the purchase worthless.

' I see much evil and injustice in this individual case, and more in its consequences. / If the owner of land can suffer a friend to erect a dam, and make no complaint for fifteen years, till that friend sells it, and then cause it to be pulled down, it is a serious matter to the community: but if the owner of land permits a dam to. be built, which occasions the water to swell on his land, and sells his land, as the land then is, with the water swelled; if it is sold again, and no objection is ‘made; if, under these circumstances, the mill has been enlarged and improved at great expense, and is sold for. its full value, and, after this, the terretenant sells to a fourth owner, and he can overhaul all this and destroy the mill, it is, to my mind, a great imputation on our jaws; such has not been the understanding, nor such the decisions. I think.there was error in the charge of- the court; •

Ton, J., concurred with Huston, J.

Judgment aifitmed.