Lexington and Ohio

Lexington and Ohio - GASES SUPREME COURT OI’...

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Unformatted text preview: GASES SUPREME COURT OI’ . ' _ PENNSYLVAI‘lIA. EASTERN DlSTflICT—-DEGEMBER TERM. 1832.- {Pnluonuum Juwun' 3,1831] l:Thc President, Managers and Company for crectin a BRIDGE over the RIVER EIIIGII, near the town of orllmmnnn against 'l'llE LEilIGll COAL AND NJ‘LVIGAT 0N .‘COMMNY. APPEAL. ‘ 4 The col. of nunmlaly of [In 20th March. 1813. “ in impruvo the nnvlgnllnn III the rivet Lolll 1|." and that of llw [31h of Fuhruruy. 1822, " winour- rulu Ilm Lclulgl Cunl Incl Navignliun Company." in whom llao rigllll, a, uf llm gmmccs under llm funnel- ncl lmunmo rested, in pruvidiug n famed} fur injuries uccnaiuncd by the cunstmciioa a! the walks, pruvnlu ' lulu In. common Inw. and. on the olluur hand, tlm slntnlury rcmuly oslunds to every cununun lnw Injury. nl. within (In! lull” of A corpumliun (such as a bridge cmnpnny), Ilmngh u the nels, is n-‘uhiu their clllllly, and um} Neuter dnmngcu in llw mndu 9d prescribed lay llumn, fur injury nualuinml in ll: properly. \J No curpurntiun omit la conlinuo [he anemone-ion la cerlnin officns wlulcllcnn- Itilule nn iulcgrnl purl. M in buly, but than offich be supplied with ufl‘h can dc finch). n. is wiliuicnt lo lust-I‘m in eliulcnce no lo changers. and ' to ennhla H In mnintniu I suit. Thu Inn of an into nl put of n corpnrntinn, work. I dinsolutinn lo cnrlnin pnrpoaea only; I. to curpnmlu franchise lining ulspendad, but not Ollil'l- gullhcd. An cnlirn dissolullml in Ilnc result at a permanenlinnfnncil’ so mature the dufici-zm part. and never lmppcnn when [he legilinmla ex- menco of the purl. in not indiupomnbla lo 1 valid election, or olhur mum. of Ieprudncliun. - - A furfotlura of the ohnrler of a corporation for abulo or neglect o!‘ Ila fnn~ VOL. m—l IBUEREME COURT I [Philadelphia Lehigli Cunl snd Nnrlgnlloh Cumpln’.) [Irel'llflll Bridge Comps“) e- and judgmental ion, before the cor- ehiss, must he declsrsd h] procerl pointiun no he tresled ll delitnct. _ The existence of s corporslion pluinlifl', run he put In issue only by s plert in shutelnent, or, st lent. hy such it plea on denies lh whole rleclnrn— tinu ; pleading erer specinlly to the merits, admits the plnlnltfl s enpuetty Q to sue. _ ' "'[.10] 'Ths legit-lulu srsnlecs of I right to impress the Mitigation of n river. by Infilan limits, loehe, do” nillt the privilege of entering upon the lends of others for times putputt‘v. hurt: lllt: eunta right in "out I darn st no; piece on the river, that it proprietor him to erect. one on his own lands} sud if chargeable it ill: no mint nt attention to its prnhnhle efi'ret, are not snsnsrshle [or consequences which it. was impouthle to foresee end prerent. For on set ul Providence. slone. therefore. the, us not err-«arable. To fix them with liability [or Illlflt‘lllt‘r done in, n Ilia-ad to storm, there Inn-l he s eoocitrrtncs of negligence with the set of Providence ; and in it pro- errding sghinst them to "enter Ilium-get for such tninehict’, it is for the or; to inquire whether the, have used all prnpc'r preenutiunr to prevent worrquenliat in}ul’1. _ In I proceeding to recover damages (or III Injury does In the pier M s inn-lire. occasioned la, the erection of n dour tvitlt I rloiee or elitism left for rnl'ta, srlrieb in it [loud directed the volume of water nettinst the tier. the alumi- snt of deem-pas is not the outlet a new pier, unless the ol one should he found sltugether worthless. This case, which came before the court on on appeal from the judgment of the Circuit Court of Lrhigh county, ton, J., in April, 183:2, originated in n petition presented by the luintilfs, lo the Court of Common Plans of Lehigh county, on the llth of September, “330. [or a uenr’re under the neta of rut- sembly ul Ethh of March, IBIS, entitled “ An set to improve the navigation of the river l.t-lri;:la." tl‘am. Lune. 197.) rind of liilh February, 1822, entitled " An net to inem'porult' the l.r-high Cool sntl Nttvigntion Cntnpnny," tl'ulu. Luna, ill.) The plnintills were incorporated hy the net of Btth of Murcia, 1797. entitled “An act to muhurizc the governor of the corn- motnt'enlllt In incorporate u company for erecting u bridge over the river Lehiglt, near the town of Northampton." {h .:r\t'a of Perth. 24?, Currey and llioren's ed.) 1]} the first section of this oet, commissioners are trained for receivin - subscriptions; the form of ettheeriptiou iutlieuted, and live doli’nrs on each share directed to he paid on subscribing. The seeotul'srction dcelnres, that when littt'cn or more perrnnu shall have subrerihed one hundred shares, the governor rhail in- corpornto the com nny; directs \vlmt the style of the corpnru- lion shall he', nullioriut-n‘ an enlargement of the capital clock, kc. By the third section, the six persons lit-:st mined in the lellets pulcnt, are directed to give notice in two or more l‘hila- dolphin nunspspers, one of which tshuil be in the German inn- gouge, and also in the public neuepupers m. Balaton, of s time sud piuceh] them to he appointed, notices than thirty tlayu lrmu held by line-- __ 11".". end discharged ; it directs that the Iggregutn amount of ,, "V 1'. id ‘tu ,“ I (Talon. e, 1883.] OF PENNSYLVANIA. it I}; in: (Lshlgh “ridge'Compnny s. Lehigh Cool and Navigation Company.] _ 7' :I,the time of issuing thr- lirst notice, when and where the subscri- 't..;:’l~'horl‘ahrtll proceed to organise the corporation, by choosing “cue 5," preslrlrnt, four mnnngers, one treasurer, sud euclt other officers : raffles they shall lhinit necessary to conduct the business or the eer- r- ‘. ,_ “3-32 , . Por‘llo" [0" 0M 10!". ml until other elliccrs shall he chosen, and srs sutimriserl lo mitige such hy-luna, mice, $2., cs may he neces- _' ' ear] for the «ell-ordering the ell-airs ol' the company," the: E] f. the fourth section it is provided, that the stochlrohlen shull meet on the first Monday in August in every succeeding your for :the purpose of choosing such officers ss Irltrl'lttlll l'or the. en- sutn yenr. The filth. sixth and seventh sections are not mu- term . The eighth directs the mode of keeping the accounts ;;,_~,--H___'ol the compnny, \vhieh ore to he submitted once s year ,, v,-_;-‘.-_{ to the stock raiders until the bridge shell he com letcrl I “1 4’5? and until all the costs, charges and expenses shul be full paid H _ ' fl such :1 expenses hull he liquidated end ssecrtninerl, und il' upon such .;.‘s_.-: ,ltqutdutton, or \vlwnerer the whole eupitul stock shall be nearly ' expended, it shall he found that the cnpitul stock is not sullicient to complete the bridge, the president, msnugers nntl cotupnnv are I ‘solhnrtsed to increnee the number of shares to such exit-ht u " shall be deemed suliieienl. to accomplish the tvorlr. The ninth section vests the property of the bridge, when emn'pletnl, in the '4‘,--.-_--compnny; eslnhlisheu the role of tolis, rtml contuins n pron-fro ‘x. ' that. the bridge shull not he erected in such rt titnnncr us to in1 - Jure, stop, or interrupt lire'nnvigntion of the river or the possum orer tltc l'orul liver to the phtcc where the ferry was then llt‘fil. The tenth nnd eleventh sections sre immsteriul. Ii’lro tnell'tlrdi: reels, thnt accounts shall he kept of the tolht received, and tltntdivi- dentls shall he declared, deducting first, expenses, and such a stun so may the deemed necessan for it growing loud to provide ngninst the (it-cu ol' the. bridge, and for rtdmiidin and repuirinv it. The : '- thirteent t nl'ctlull provides thnt at the coil of every third year . :from the tlntu of the incorpornlion, until two yours next. after the " thndge shell he completed, an uhutruet of the accounts, showing . I... -the whole of the capital expended in the prosecution of the work, and the income and profit arising {rent the hrid-vo, durim- these periods, nhnli ho htid before the legislature, with0 no excel: ‘seeoont of the. cost and charges of keeping the bridge in repair to the end that tho clear income only he naeermined and ii' ii shall appear llmt the clear income unrl profile will “let hour it titvttlem of six per cent, the toils shall be increased so as to mine it. to thnt srnourtl. end at the end of every ten ycsrs nfter the completion of the bridge, rt like obstruct. shall he laid belore the legtshrture, und if the clear income and profits will hear u divi- _ ‘ (lend of more than fifteen per cent, the tulle shull he reduced so . st to reduce the dividend to fifteen per cent. The fourteenth r s " t . . "I err, e_l‘_a , i, surname coca? - [rat-oasis, (Lchigh llridgs Company v. Lchigh Coal and Navigation Company.) section provides, that if the company shall'aot proceed to carry on the work within three years sitar thetr tneorporatmn, and shall not complete it within seven years from the passag of the - act, the le islsturo may resume the grant. And the fifteenth section actiicrises the legislature, after the year 1820, to take the bridge at a valuation. . This act was revived and amended by an not passed 28th of March, 1806, (-l Sm. 15,341.) , . On the 20th of March, 1818, an act of assembly waspnsscd, entitled "An act to improve tho navigation‘of the river lnc— high,” (7 Laws of Penn., Head's ed. till.) b which Josiah Wbttc, George F. A. “auto, and Ersltino ilazar ,_tbotr heirs and os~ signs, werc.autboniscd ’to enter upon the said river, to open, on- large and change its channel, he, to omits dams, looks, or any other devicerwhicb they should think fir and convoalont to make ,1.) a good navigation. downward, ‘dzc. The second sectton l '"] of this not. provides, “ that if any person or persons shall be injured by means of any darn or dams being erected, or the land of any person inundated by swelling the water by means of any darn or dams, or any mill or other water works injured by swcllidg the water into the tail race of any mill, or other water works, which may have been erected in the said river, and if the aid Josiah White, George 1". A. llouto, and Erskine Hazard, their heirs and assigns, cannot agree witlt the owner or owners thereof, on Ihc compensation to be paid for such injury, the same proceedings shall he had as are provided in the third section of this act; the persons valuing the damages, being first sworn or affirmed, or the jury, as the case may he, shall take into consid- oration the advantages which may be derived by such owner or owners by the navigation aforesaid." - The third section declares, “ That the said Josiah White, George F. A. “onto, and Erskine Hazard, their heirs and as- signs, shall have authority and power by themselves or their su- perintendents, engineers, artists and aorhiucn, to Enter in and upou,'ond occupy, for the purpose, all land which shall be neces- sary and suitable for erecting a lock, sluice, canal, tow-path or other device, doing as iittic damage as pnssibic, and there to dig, construct, make and erect,- sucb loch, sluice, camtl, tow-path or outer device, satisfying the owner or owners thereof, but if the parties cannot agree upon the compensation to be made to such owner or owners, it shall atul may be lawful for the putlics to appoint; six suitable and judicious persons, who shall ht: under oath or ailirtnation, and who shall l'flhillc within the proper county where the land lien; or if they cannot agree on such tct‘suns, then either of the parties may apply to the Court of otntuon Pleas of the prepcr county where the hind lies, and the said court shall award a venire directed to tho sheriff, to summon a 7- . . r“ Jan.8,1833.] on PENNSYLVANIA. .z (Lchigb "ridge Company v. Lohigh Cortland Navigation Company.) V jury of disinterestedmeu, in order to ascertain and report to tho - court what damages, if any, have been sustained by the owner ' or owners of the ground by reason of such lock, canal, sluice, , . tow-path, or other device, passing through his, her or their land, which report being confirmed by the court,jndgmcnt shall he ' entered, nnd execution shall issue, in case of‘non-payntent, , for the sum awarded, with reasonable cost to be assessed by the court. And it shall be the duty of the jury, or the sit up. praiscrs, as the case may he, in valuing any land, to take into consideration the advantage derived to the owner or owners of the premises from the said navigation: Provided, that either , party may appeal to the court within thirty days after such ro- -.‘ port rnny have been filed in tho prothonotary's allies of the pro» _ ff», per county, in tho same manner as appeals allowed in other " cases." This section also contains a provision in relation tofcm- . 'mu counter, persons under age, non compares month, or out of the state. ' . _ On tho l3lh of February, 18:32, an act. of assembly was passed, (Pam. Laws. 2|.) to incorporate " Tho Lehigh Coal and Nurigao " tion *Company," the preamble of which recited the act ,13 of 20th March, 1815, to “ improve the Navigationpf the [ J river Loltiglt," by which certain rights were granted to Messrs. White, “auto and Hazard: That they had conveyed to tho thigh Navigation Company, all the rights vested in them by -thut‘. act, rcscrvin certain rcsiduary profits: That Messrs. ._ ' White, “onto an: Hazard, had purchased certain estate in sundry tracts of coal land, which for tho purpose of raising funds, [buy bad conveyed to trustees for the use of certain per- sons furnishing the funds, and associated under the name of “Tho Lebigh Unnl Company," reserving certain residuary pro- fits and exclusive rights in the management of the company: That these companies had united and amalgamated themselves into one company, under the name of The Lehigh Navigation and Coal Company, confirming to Messrs. White, “auto and Hazard, the residual-y rolits, and exclusive rights before re- , served hy them: That 1 auto had agreed to convey all his rights in ‘ib'iti'tn and iiazurd, which agreement had iicctt carried. tnio effect, and the I'nmls of the company being still insuflicicnt for tho olrjccls oi the association, it was agreed between the smelt-holders in the said company, and the said White and "a- ittrtl, that the name of the company should ho changed to that. oi'"'l‘ho Lehigh Coal and Navigation Company:" That the capital stock should be increased by tho Itdtttissiun of new sub- seribcrs, and that in consideration thereof, and certain shares of 7 the stock of the new company to be given to them, White and n __ Hazard should release to the company their reserved rights, .Fl%"'iu'i“' ' Jan, 5, 1833.] or Peuusrwmpc. t slut-i. 13' ' SUPREME 'coun'i" [I’fil'iaddpftt-il, (Leliigh “ridge Cimipnny o. Lehigh Cool nod Nuignlion Company.) their luck and ton-path, fifty feet in len th. and tliirty-sercni‘, _ feet in width, upon nod through this hind, i omitted the plaintiffs \ [Lehigh Brldgs Company [Lehi‘h Cool and Norignllon Compnny,) sod convey to trustees, in the new company, all their right to the water power, and come in as simple stockholders under the new association, to. The set, therefore, in the first “whom-In- corporates the new Company, by the name of “The Leliigh Cont sud Novigltion Company," with tho usuiil cor orato porters, 3:0. The second section, tests the property of tie for— mer association in the new corporation, nnll provides that its contracts shall continue in force. The third section confirms to the corporation the rights mil pririlegi-s grnntcd to Messrs. White, llsuto ond Ilszord, by the not of 20th of March, 1818. .' of the use i'md occupation of the land, and impaired the value of their property to the further amount of one hundred dollars. '. And other wrongs and injuries, he. That the defendants had/' ' oindo no compensation, kc. t, 13" virtue of this uciii're the sheriff summoned nn inquest, who I on t is 18th of October, “:30, returned on inupiisition findiim '._-"-.I that dniiuiges to tho omount of six. thousand three hundred and ‘ seventy-one ilullnrs, Iiiid been snstnined by tho plaintiffs, "ex- The seventh section, declares, thut in tho npprnisenient of daiu- ‘. clltsiw 0f tiny udrnntnges which may be derircd to the said, egos, and valuation of materinls provided for by the second, ' ' ' , ‘Thc President, bluntigers and Company, for erecting o bridge,’ third, fourth, fifth, or any other sections of tho above mentioned , 510-. film“ ll!“ “"V'flj‘llw “r “"5 Will. “‘1” 1"?“ng i"‘f‘"’"°‘l h! “in if Gill'erillsrli lsbiill require it. the referees, or persona coin- ‘ ' the said, "llie licltlglt Coal sud Navigation Cumpany,‘ " and so- posii’ig the jury of reduction, she“ not be taken from within cordineg spanned the damages at that sum. up“, mile, of tho [ivflr Lcllipth , _ ' From this finding tho defendants nppcolcd to.tliu Court. of The petition presented by tho plointill's to ,tho Court of Coni- ' Common Pleas of Lehigh County, and afterwards rumored the men Pleas, in pursuance of the provisions of these sets of us- cause into the Circuit Court. _ Thc'pleint filed by the plaintiff-i, set forth, in substance, that. , .- - b virtue of tho not of 28th of Mrircli, 119?, and lhntol' 28th of Ind “unmet,” of a” defendant's 'i i'- 'h nreh, 1306, the plaintiffs were incorporated by tho corporate ‘-‘. stlylo sforesnid, and iii and during the yours 1313, l3”, end 1 15, erected and Constructed a good Mid Iiihstnntiiil bridge seinbly, slleged dnmsgs nod injury to their property, in the fed ‘35. lowing particulars, viz. ‘ First. By the erection / dent, it trus till: ed that the middle pier of the bridge was un- rleriiiineil, and tlio foundnlion of ii crooked and split, nod tuinlly ruined, and the nine of the bridge impnircd to the amount of ‘ _ composed portlyof ritutic, partly of wood, rind portly of iron, \ [en "momma doling, '- ‘i ‘ colleil o choin bridge : Tlint'the right, title, property nod inter- - [,1 ,} 'Sccoml. That. by reason of the blasting of rocks, rurth ' I test in tho bridge, With the right of telling loll, were, and ever and stone, in the construction of the canal, he. nlim‘c amen have been. nod are now, absolutely resin-d by the provi- siul below the bridge, n house erected on the bridge, of the Value lions 0" those uncle of nuscnihly. in the plaintiffs. their successors, of five hundred dollmg, was slumcrml, ion. in pieces, P|'u:j|[n|c|l' Ind assigns forerer: 'l'hnt between the lot of January, nnd 20th “1.1 "on", destroyer], of June, H529, the defendants constructed n. darn across the Third. 'i‘hut b reason of the. blasting of rocks, stonea nod river, lcttt'iflti o sluice, or passage, in the dam, which threw corth, us aforesaid, n large end :iiibatantinl iron chuin was ac- ’the wider ll ling the en“ side or the middle pier of tho “5 sored und broken, and the from: and wood work of the bridge bridge. by \iliicli the pier urns iindertiiined, the fuiindib [ 1 seriously injured, thereby further impairing the property of the tin.“ of it sunk, and the pier itself cracked l'lllll split and totally ptflimim' to [he ‘1qu of five hundred dollars. ruined, by reason whereof the value of the bridge was impaired Fourth. 'l‘hiit certain scolhddiiig made use of in repairing the A _ to the amount of ten thouaond dollurs : That the defemhints,by bridge, was prostrotcil, sire-pt nutty, nod totally ticslruyuii, ‘ ‘ bloating, and blowing rocks,eorth rind stone, in the construction thereby further iiiipniritig the value of tho pliiiiitilis' properly to _ of I certain canal, leek. tow-pnth, find other devices at, ubovo, and below, the cost end of the bridge, on the Ztst 01' October, the “mount. of two hundred doiinra. 1398,:ievcrcil flltllllrnlflt clown ii large nnil substantial iron cliiiin,in Filth. That by t'flif‘f"! of the construction of the dam "cross the fig". 5:5,, ; {Mun quantity "I “am; and gravel m”, fol-cud "‘ consequence of which the floor of the bridge was thrown down, down the river nhiei has seriously injured the property of tho - And the frame and wood work, greatly injured, by n‘liictho Pinimmg. plaintiffs sustnincd ilnmnge to the amount of tire hundred dul- Sixtii. That the plaintiffs being seized in their deniesno no of M5: Thol- hy rrnson of the some causes, a l'i-ams house on the fee of s certain trnct of hind, etc. in Hanover township, &o., ._ "New plot of tho bridge was torn in pieces, prom-areal and to. contuining fifty feet square, the defendants had, in constructing ‘ dolly destroyed, to the further domngo of tho pluintiil's lire - 'v ,—4.:- 4-,. :- , l I: gin“ ' l' _ - , .‘ . fl ,,. ' > ' ' I t F , . . ' . . . l, H l r I A ‘ 1-5 . SUPREME COURT [Miocene .5: _ iii-“inn. e, 1833,] OF PENNSYLVANIA. .6 I i ' ' ' ‘.l I _ [Lehigh Bridge company I». Lehigh Cont and Navigation Company.) ' I' ‘§‘ ._ (Labial, ‘ltridgu Company a. Lehigh Coal and Navtgntmn Company.) a and on the use. of April,1831. Na election was held on the 8d of Au net, 1831. - , I I” The tlclfcndante' counsel still objected to any cvulence being given in the cause, until it was shown that the oilicers of the calm .- : paration had been regularly elected. , I ‘i 'Ilie Honour declared that he would let the cause go on, though he entertained strong doubts on the suhjeet. At the request of the defendants' counsel, he noted the deeitlon. _ . - The plaintill's' counsel then showed culture In the heel; of ' minutes, of elections in several years, and also loose papers pur- porting to be certificates of other elccttons, not. recorded or en- tered in the minute book, a list of which was furnished to the : court; but. they were phjeeted to as evidence tiltltl they should vcd. . - I - beXriiutnher of witnesses were examined on behalf both of. tho laintillh and'defcndants, in relation to the injuries complained hundred dollars; and that by the occupation by the defendants of the plaintilfs' land for a look and tow-path, they had sustained further damn -e to the amount of fire hundred dollars. The defenilunts pleaded that they had not committed the damage complained of, upon which issue was joined. ' 0n, the opening of the ease to the jury, the laintill's' coun- sel claimeddnmagcs, let, For the underuuning air the pier; .‘Zd, For the land occupied by the canal and tow‘puth ; lid, For the shattering of the bridge by hiastin times in the canal; 4th, For tireless of scaffolding; and lastEy for the loss of tolls. After having given in evidence the act of 28th March, 1797, authorising the incorporation of the Drid a Company, the sup- plementary act of 23th March, 1808, an the charter of incor': paratton,tatéd 12th of March, 1812, and shown title to the piece of ground, fifty feet square, already mentioned, the plain-' _ ttifs' counsel called a witness, who was sworn, but before he was examined the defendants' counsel objected to any further cvi- I or by the plaintiffs. Their statements as-_to the nature, causes, den“? bung 8W9“: “M55 iii Bhould be shown, b proof of the L,- and extent of these injuries (to insert which would canopy £00 election of officers held according to law, that t a corporation ' 2 much space), differed Inatcrialiy from each other. ' one still.in_ existence. The witness westhen withdrawn, and the book of minutes of the company produced, from which it ap- peared, that on the 13th of May, 1812, an election was held, : His Honour left the quantum of dztnmges to tho‘jury. as a I , question of fact, giving it as his opinion, that the pl'nl'ntt'fls were , entitled to recover damages to the extent of the injuries sus- a when James Greenlcaf was elected President, Jacob Cinder, taiued, hut intimating. that. from ll"! “Mic bVi‘lu'mei "'c “Mimi -. John Mohr, John Kcrpor and Je’coh Newhard, Managers, and ‘ --_- did not appear so great as the plaintifl's alleged ; and instructing 1 George Grail“, Treasurer; and that on the 13th of June of the the jury, that they ought not to take into consideration any ad- lnmc year, by-Ian‘e were passed. No minute appeared in the l ‘ vantages which the plaintiffs might have derived from increased hook or aliyiinccting;fr01n the 30th of July, 18”}, to the let of " H tolls in consequence of the increase of business occnsloned by SEPIF'“b0". 13“- II the lust mentioned day, James Jameson, the works of the defendants. _ Preetdont, Jacob Newhard, Jacob Cinder, Christian Young and The jury on the 19th at Apr", 1832. "turned a Verdict Albrnhntn Smith, Managers, met, he. ‘ in favour of—the plaintiffs, fur‘flvc thousand seven hundred The plainlifl‘s' counsel then read the act of 23d of April, " dollars. ‘ A 1820, (Pam. L. 320,) authorising the stockholders of the Bridge . 4 - A motion was made for a new trial, WhiClI being OVl‘I'l‘Mfl‘h ii"! Gompauy‘to meet and fill all recancics which then were, or which .' defendants appealed. - . . might thereafter be caused, by the death or resignation of the , The following were the reason! “Signed r" “ "e" "m" "1‘ oillcers or managers of the company, or from may other cause I ' First. That the injuries sustained were not rentediahle by the whatever, and prortdin that at least two weeks notice of the - .prooccdings iuatitutcd. ' ' ['16] time, place, in purpose of such *mecting, should he - SrCOIItl- Tim'- lll‘fl'c W33 “9 Prooronlm “"lat°"“°,°r.w°h “ co.” , liuhllsbt‘d by the direction of some officer, or at least - poraIion as the pluintiifs' at the time the alleged injuries are said three stockholders of the company, in one or more of the news- ' to have been cunnuitted. W‘P‘E” l’fi'llif‘l in “"3 homufi' Of NOTHIMHP‘O". and also that tho _ Third. 'j'hat u corporation cannot institute such a proceeding spacial elections to be he I] under the provisions of this act, ’ -' as the present against the defendants. \ st ould, in other respects, he conducted in the manner that tho Fourth. That the verdict is contrary to law, the evidence in annual elections of the company were by law directed to be con- ., the ‘causrr, and the charge of the court on to the quan- [.11] duclca' - 7'1. tum of damage, or extent of the injury for which damages From the minutes it appeared that elections for officers took j ' could be rccomrci 7 place on the 8d of August, 1829; on the 3d of August, 1830, 7 " Fifth. That the judge erred in so much of his charge as ex- ll in "f" 7“; -lA (perineum... -4- SUPREME coonr (Lehlgh Bridge company o. Lolliin Cool and Narlgstion Company.) eluded from the considerstion of the jury. the advantages do- ‘ rived by the plaintiffs, from the works of the defendants. Dani's and J. RI. Porter, [or the sppellnnts,~—sfter sdrcrting to the second section of the not of 201 I of March, IBIS, “ to im- prove the navigation of the riser Leillgil,'i which provides u re- inedy for injuries occasioned by dams erected by the defend- ants, eontended— . 1. That the ease of the plaintifl's did not come within the per- view of that act; but that if the injuries complained of really had been. sustained, tho remedy for part of them, at least, nos st common low._ 0n the trial, claims for damages of two kinds were submitted to thejuty ; one founded a on the alleged injuries ‘ to the pier; the hther upon the occupation of the plainlifis’ land, for a canal and tow-path. The first is clearly not embraced by the set referred to, which provides a remedy for, demo es done to land, mills or other water works. hy the swelling of tiie water of tho river. A brid c, it Will not he pretended, comes within the description ofn int i, or other water worlis. Nor is it and, or taxable as such for raising count rates and levies. Permanent Bri'd a Company v. Freaky, til, Serg. Jr Itawle, 422. The al— lager injury, moreover, was not the direct and immediste con- sequence of the woriis of the defendants. The injury is ascribed to ssluiee left in the dam rind an unusually high freshel, caused h heavy rains, which produced an extraordinary flood of water I rough it, in consequence of which the pier was undermined and cracked. Ordinar fresiiols Iind done no injury, but the extraordinary one of eceinher, lHflU, produced the mischief. These facts present lease of consequential dninage, for which at common law the remedy would be on action on the cause. Tho act of asscmhly was intended to prorido n remedy for those in- juries whielr were the necessary and immediate result of the com struction of the works of the defendants, tearing it to tho coni- mon law to redress all injuries which wore not embraced by the stntutc. Shrunk v. The Sehuylh'fl Nari-ignition Company, l-l Serg. It Ilnwlo, 'II, 83; Chestnut Ililliiiid Spring Home Turn- pike Company r. Rutter, 4 Serg. 5i ltnwle, 6; The Schuylkill Navigation Company r. Tholinrn, 'f Serg. 5i. Howls, 411. If then the p nintill's have sustained nn injnr for which they have redress, they have mistaken their mined); in proceeding under the act of assembly. But there is no redress for the grievance complained of. The ninth section of the act incor- purulng the bridge company dcclnrco expressly, that they idiuli not injure, stop, or interrupt the nnrigntiun of the river. lleiieo it rilllutt‘tl, that if in order to preserve the nurigiitiun of the river, it became necessary to injure the bridge, the defendants had a ,. _l OF PENNSYLVAle ' 11 [Lehlgli Bridge Comp-fly s. Lehlsh Coal sod Navigation Company.) ‘right to do so, and the damage sustained is dainnnni obiqiia m- -f.."r9?§..'!:.' . r. ' I ‘ I i . -. "Eu-hi. The second reasonsssigned forsncwtrialinvolress [.13] .' $1.13} I'question ofconsidernhloimportance. It-rcsol'resitselfinto l d . it two propositions. First, Is a corpontiop dissolved by repen e - It. a-'- neglects to elect officers and to comply lt‘lllt the other requisition; " i'. " of the act authorising the grant a a charter of Illcurpornlton ' ' ' 'Iissoliition he - - Second If the corporation be dissolved, can its: I n H ‘3‘?“ taken iidrnnisgo of in this proceeding, and under the pleutiltiatl i in this causal In considering the first. proposition, it is prices-r - {If ', .ary to look to the origin, progress, and present common Ipd i ' corporations. This is said to he the age of. improvement, I ‘ _ particularly of internal improvements, and if so, the low mt“ ' ' The doctrine to so see with tho encral regress of society. ' ‘ li’ . he finihd in the English hooiis prior to the Revolution, lins refer- - i I . cc to a s coins of cor orntions thcit most usually exacting, “1., trilunicipnl liiorporationsp; hut. there Is a rude diiierenco heiire‘rin . . corporations established for the government of towns, pnuh pm; 7.9.?" rate corporations estnhlished ler‘tho purposes for one “MS 'a plaintiffs were incorporated. it is to municipal corporp . if. that Blackstone refers (2?. Di. Com. 87,) when I'm spend“ 0 “ct:- orntions as franchises. Of these corporations, it is on; y Elainat (15:3), that " their design is to provide some good t iatris ' .- tut to the nhlic.” All the foroi u odyudiesiiunsdm'ro a- fi I use P ' d l h their instru- "\ toured corporntions on tho-groan , tint tircug r or 3 .' mentality, the people to nined from the crown entitle ppr my those rights of which it ind possessed itself. If he rur‘icus; ceased, it reverted to the crown, which wus thus strcltigl ienpa against the people. llero, on the contrury, the pepp‘e are t i only legitimate depository and source of power. ihatcici; i3 . iven to on assncmtiun of indiridunls, is so much s strncfe item the rights of the citizen, and when these rights on; or- ° ~feited, from any cause, they revert to the community at nrg‘o. A dili'ercnt renson existing, a lililut'clll: luw must he the teen It is true that Chief Justice Blarslinll, in the ense of Dnrtmout Coils-ea v. li’eodworil, 4 Wheat. blB, snid, .“ that, tlioLpi-dgl‘ic henclit supposed to he dorivcd,_ts such It sufficient common-lei: for. the grill”. of corporate pririleges, that when such grant b made it is considered in the nature of a contract and Ltll'tllt) e - revoked." Yet. the accuracy of this doctrine, with the tllliltlljl l-i deference to the high source from which itcmnnntcd, trulyl e H doubted. It seems to hnro been adopted without due I'cgtllt ‘to the distinction uli‘cndy adrerled to. 't'liis ease, howercrl, n o- cides nothing more than that incorporation for literary Yul opt- entitle purposes, cnnnot ho deprive of any thing strict y to at g. ing to it. The policy of this country is to restrain, no to e . '1 . :t | K Vi. a '5 screens coonr - [paranoia L4 (Lettiin Bridge Company is. Lehigli Coal and Navigation) Company.) large, corporate riglits.‘ Brain's V. Laure of It'itowlcr, 4 Peters, 152. In En dead, on the other hand, the courts adopting the views of Sir .i industry, trade and the arts, were attributable to the grants made by, or cxlorted from feudal tyrants to-froe cities and towns, from which all the free and regular government which succeeded the prostration of the civilization and science of the [.19] Roman cm ire proceeded, ‘pursuecl a different policy, and extended tie circle of corporate privileges as widely as ossiblo; much more so than it would be expedient to do here. [he defendants do not ask that anything properly belonging to the plaintiffs shall he talren front them; they merely ask that they shall be confined to the path prescribed by the law. The over,‘ that uniler the act by which the plaintiffs were createif: there were oei’tain conditions precedent in the grant of the char-r ter, and certain conditions subsequent, necessary to be complied with, in order to secure a continuance of their corporate privi- leges. Bridge companies are private corporations, created partly for the accommodation of the public, but mainly for the private emolumcnt of the stockholders. They are permitted to take tell from citizens who are travelling, and their conduct should therefore be strictly guarded. To entitle the corporation in question to perpetual succession, many things were necessary to be done on their part, and among others, they wore bound to elect their ofliccrs annually, at the time, in the manner, and after giving the notice prescribed iii the act. (The diflcrcnt sections of the act incorporating the plaintiffs were here referred to and commented on.) Municipal corporations have been held to be dissolved, even in England, by failure to elect otlicers on the charter day, when the chief officer was not entitled to hold over, Inasmuch as the corporation had no power attcrwards to elect one. Attch .1: Areas, 505. This svil was remedied by the stat. 11 Gee. 1., ch. 4. sec. 1. Chaneeilor Kent has indeed held, that though a corporation be dissolved, its powers cannot be talten from it coihiterally,aiiil that this can only he done by legal pro- cess. 4 John. Ch. R. 313; 5 John. 0h. ll. 37!). But what is a collateral proceeding? Surely not a saii. by the aliegcii cor~ poration. Under the general issue a corporation plaintiff must prove its existence. Angel & Amt-s, 377. See also 5 Mass, ltep. 5H; 3 Moss.‘ Hop. 9.76; 12 Mass. llep. 400; 10 Mass. Rep. 91. . 'l'lio omission to comply with tho requisitions of the ‘aet in this case, was clearly a forfeiture or loss of the charter, and the only i uestion is, whether it can be taken advantage of in this pi'occcilin . The vast increase of corporations in Penn- syivania, now cal s for a different role on this subject from that which at one time might have been deemed sufficient, and on this ames M‘lutosli, that the revival of order, security, - i, '—-. l 8, 1833.] OF PENNSYLVANIA. 't, [L-chiglt Bridge Company Ii. Lehiglt Coal and Navigation Campus}; 1 principle this court has acted. In the case of [patina ‘ Commonwealth Inlurance Company, 15 Scrg. to an o, , m which it was decided that a writ of foreign attachment irotli _ lie against a corporation, Judge Rogers says, ‘ with the up: 4- plicotiou of corporations which has and is taking p aco,ho I almost indefinite extent, there has been a corresponding c lingo in the law respecting them. This chan e in the 11am ilai:_sris:n from a change in circumstances, from I tat silent LEN it‘lun hy - the people themselves, which Is continually going on, in el colon fly; such ag- ours, the more wholesome because it is no ,fa m wisely adapted to the peculiar Situation, wants and it’d aisle 3 d citizens." If it be said that the mottorshopld have. con p ea c in tubule”,th “cm-dint, to the case of IirrtInrnh m [.20] Sutton v. Gale, 3 Pick. llcp. 2-l5, the reply to, that when- ” ever a plaintitf sues improperly, the defendant can take advan- : tags of it on the general issue. It is to take ndvantugelof an .. ' 'error in the character or number of defendants, that a pee ii: .'.-:I abatement is necessary. lrt'ison v. ll’ailucsl r._81 ' I ‘ Rawle, 53; Kennedy v. Ferris, 58mg. 5t Route, .330 , at y s -- '. was not the design of the-legislature to 'gllt'o to corpayln. 'tions a statutory remedy for injuries done to thug-property. “in third section of the act of 13th of February, Iii“, vests’ltln‘ e Leliigh Coal and Navigation Company a)" the Tlelitfluprlltgltggcf, i'li'li‘ " immunities, kc, iven by the act of the -Otli of item I, , t; ‘ Messrs. White, lauto and Hazard, upon the same tprros, amll ' subject to the sntne duties imposed upon toner; and t 'tB socon section of the latter act provules a remedy for any-person or persons whose property may be in nch by the works pi spla- templation. The plaintiffs cannot ring themselves outrun to terms of the act, as they do not answer the description 0 person or persons. When a statute is intended to embracecorporations, as Well as natural persons, its usual iangiiago is, . if person or persons, bodies politic or corporate in law, he. ' roaming. ' I sion of these customary words, clearly indicates the Inlc‘tttllffitl-lfil the legislature not to extend the provisions of the act to arli Lia ilfllflullal 4. The verdict was erronequ as to the quantum of damages, and the extent of the injury for which they more to be covered. it molten the defendants pay for a pier whiclri’s st-t substantial and good, and which, according to [lie cvt one? his lost many years, as if it'wcro entirely useless, dopgcrept: an ready to fall down. It Is a Verdict tn anticlplnlion 0' . total loss, or a claim for a total loss, ivithont ahnni ontltgit to l ’ bridge to the defendants. [The counsel here referred to anI_ rp: I marked upon the evidence in support of lltult‘ Vchtl on this potn , r. ,. 2'0' .: _ 'sornotto COURT _ {Partitioning (Lthlgh llrillfie Company 9. Lchlgh deal and Navigation Company.) they also cited Tile Schuylkill N’norgntr‘nu Conjpony v. Tiaoi-urn, 'l Serg. 8; ltnvvle, 4!], for the rule y which Images are to be estimated.) _ , 5. The jury ought to have talten into consideration the ad- 'vantoges which the plaintiffs derived from the dark: of the de- fendnnts, as trell in the general increase of travelling. as in the profit derived from the contractors, nud those etnpio ed by the defendants. in crossing and recrossiu". The act. a! sssetnhly expressly declares, thst the advantage. ilcrivod to the owner or owners of the premises alleged to he injured by the improvement of the navigation, shall he taken into consideration in the assess. ment of tlutnngel. That the plaintiffs were benefitted hy the norlts ol' the defendants, cannot he denied, and if so, that benefit must he considered ifi a claim for damages. under tlto provisions of thitrnct. 1i, on the other hand, the property of the ptsintifl's true ulluch a nature. that it coultl not possibly be benefitlcd hy’ [.21] the improved navigation of tho rtver, it one not in the 'contemplntton of the legislature, and the injury to it was not provided for, and consequently no proceeding founded upon the act can he roaiotoined to recover damages. I 0 Onion and J. Sergeant, for the eppellces, (who were requested by the court to confine their argument. to the first and fifth points} orgaed:——Fr‘ret, That the cases referred to by the o — posite counsel. to their that corporate grants are to be strict y construed, establish thnt position in favour of individuals. This is it case of corporation against corporation, with this diil'erence as to their rights, arising from their relative situations: that the Bridge Company heing In the partition in which individuals are usually placed, are entitled to n liberal construction in their fitt‘ultt',.ttlltl tt titt‘lcl. Ddlr“. flgtlil'tt'tl lltt: lilti‘UItllilflIS' who are assert. tug 'i'itt‘lt' corporate rights. there ovc tu'o lands of wrong which may he done to on individual by a corporation; the one by a rig ttl'ul, tho other by a wrongful act. .l‘lto first is within tho charter powers of the corporation; the last is not. The legis- luturc cannot grant tlte power to commit the first, without at the some time providing n compensation for the injury inflicted. Where they give no remedy for art not to he done hy a corpora- tion, the conunission or that act makes the corporation a wrong- doer in respect to the injured party. The legislature, therefore, usually provides n retnc you-extensive with the injury produced by the exercise of tile privilege granted. The remedy, thus provided, is for the advantage ot' the corporation, and granted at their request, to protect them from incessant Iiahiiity to corn- tnon larv remedies. it is a fair construction of ouch on net to extend the remedy to every injury which can be 'committrd by OF PENNSYLVANIA. ' a. ‘ (Lehigh Bridge Company If. Leldgh ‘f‘onl nnd NMlgnti-m Company.) ' acorporation within the limits of its charter. That an Injury has to the present instance Ahecn sustained h the plnitttills, for which they are entitled to some remedy. it ts going too for, to '.- deny. On this point, -' I t the case of The Uheurttt‘ Hill and Spain? i‘rl Horne Tumpr‘ke Company v. Rutter, 4 berg. 3L ltaule, , to ' I‘ " conclusive. it tliilers essentially from the injury complained of in Shrunk v. The Schuylkill Navigation {borrow}, it Serg. -' .J'ri ltnulc, it, in which it was held.I that the cutter pl a fishery ts : 3:4“; not. entitled to damages for on Injurysastatncd tn conscrjppnce V of erecting n dam across the river, which prevented tho Bo root II ' passing u the ntrennt. The basis of that decision was, that no man each in point of inn in: injured, by lJt'ITlg tlt'ltt'tt'tl‘j ofi :hst “which did not belong to him. 9n the cen‘tr'try, he etoutn I: ‘ thankful that he has been permitted to enjoy it so long.“- In: the injury compluined of in-tho present cone, is of n‘ merit]; character. it is no actual to|ury to sultstautntl not re on property, lit-longing to the Bridge Company; not to ahctpram'plpl propertv, tilt-e a fishery, In nhtch the whole eonnnuptty ' n can” rights, hut in relation to tvhtch the owner of the a: jutntnj; st '7 possesses certain advantages arising from the neon out u all no- i"- tion. Unlike the owner of a fishery, the Bridge Company “3'6 ' ‘ exclusive rights, privileges and property. Noonp can cross It! bridge without '[mying toll, any more than he can-{pegs [.22 ~ through the Lettigh cannl‘ntthout paying toll. and Ibt la n a . legislature were to passion net authorizing that to e I one, ‘I defendants would hardly an it true damount fl’tflflllfl "Ignite. This part. of the case is too c car for further argument._ rst ya the injury sought. to be rcdresscd, cmuprcltundcd. remain [Ire epeciai provisions of the net of essemldy? it It Is, it“ t to on mode of redress to which the plainttlls can resort, as they are cut oli' front a common law remedy where a statutory one Is Act of ‘.’.lst March. ltitlli, l'urd. Dig. 37!. The case of turnpike (.‘mupnny v. “MG—t? .. . - a t?-‘_‘-"-‘ 'n- . . .' §iven. ’ H l'lte Charm! "ill and Spring Noun 1‘ . r Rutter. d Scrg. tit. llnu'lo, ti, strongly support-t the affirmative _0 this proposition. Whatever is authorised h ' an act of the legu- ' ' ' ‘ ' ' 'l trovisiuns. i'hconl sofa course . loturc,lsrrtthtntts relnedtn I y is to mulm t The second and third sections of the no i gatiun of the river I.e|tigh,' with each other, provide a remedy the erection of dams, or the inum eon, by swelling the water by Invnne o provisions of this act, the company had when and where they p other things. the ech ' to the property of othcre. ' ' ' 71- . I... :t. he remedy co-estenstro nnh tm; my f datus, kc. tor" sustained. _ t " to improve the navi- ' which must he tnheu in connection for all injuries resulting from lntion of the lands of any pet'— Undcr the a right to erect dents, lease. to leave a sluice, and to do many ct of which would he necessarily injurioui But this unquestionable right was 90 G q \— .4 . summer cover (Mindanao, (Lehigh Bridge Company v. Lehigli Cool and Navigation Company.) coupled with a condition, that they should make an adequate compensation for the damage they might produce, in the manner indicated by the act. As the right was without limitation, so must be the remedy. ‘Tlio in'ury was the immediate and neces- sary consequence of the erection of the defendants' works. Had it not been for the existence of the dam and the sluice, no injury ‘ would have taken place. The bridge had stood floods before, which it'crc by no means extraordinnry occurrences. 'J'hey are as regular in cur rivers as the rise of the Mississippi or the Nile; every one takes them into calculation; in every river there is a. low-water mark, to distinguish it from tho Iiiglmrater mark oc- cosionc‘d by frcslie_ts. The legislature litth what would he the probable consequence of the construction of the works, for the improvement of the navigation of tho Lehi'gli, and it is impos- ' siblo they each! have intended to grant the right of destroying tliolbridge, without compensation. Before the grant tho defen- dents lltttl no ri lit to the river. They take it subject to the' condition of ranging compensation in the manner prescribed by the act. The question of damages iney be perplexing, but that is no reason for den 'iog them, if on injury has been sustained. This is one of the chief diificuliios of this case, but such dilli- culties exist in every case,and thcjnry must at at the standard of damages in the cat. manner they can. ‘ hey must. consider the matter in some degree prospectively; the must examine witnesses to ascertain as well the injury actua ly sustained, as that which will probably ensue; and come as near to a just re- sult as the nature of the case will permit. In actions of slander, the dilliculty of determining the exact amount of injury done, is P23] ‘iniinitcly greater, yet this is never urged as a reason why damages should not be given. Why then be so scrupul- ous in a case like this? To suppose the legislature intended to ' confer up the defendants the carer to commit. such injuries, without at the sauce time intending to provide a remedy, would he to iinputo to them the greatest injuatico. 3. The charge of the judge was in accordance with the act of asst-inhiy. , The jury are to take into consideration the admin. tnges which may he derired, and not those which have been de- rived from the Irorhs of the Coal and Navigation Company. The charter to the Bridge Company is a contract between that company and the people, and there-is no mode by which the grant can he resumed, or the Itlvnntnges secured to them taken away, but by a violation of the charter on the part of the com- iany, or by purchase, in the manner pointed out by the not. fire advantages which the legislature had in view, when they said they should be taken into consideration in assessing datu- ages, were those of a permanent and substantial character; not t- l OF PENNSYLVANIA. _ 23 (Leliigh Bridge Company ii. Lchigli Coal and Navigation Company.) ‘ .\.;_:'.temporary and accidental, as these were. The right to telte toll lair was given as a compensation for the use, and wear and tear of the bridge, and it is plain, that Its increased use must vincrepss -" ‘its wear and tear, require additional expense to keep it in on tlar, and accelerate its destruction. It by no means follows from tile increase of travelling, that. the value of: the property Is tncreasci . The stock of the Gcrlnantown Turnpike Lump-any was once as bi h as a hundred and nineteen; it. is now below fifty, yet tra- " " Waiting on that road has greatly Increased. 'lhc sonic tlilipgmsy i be predicated of many other turn the roads. His onour, ._ therefore, did not. err in saying, ttat the atllvantngcs Firm-g i: from an increase of tolls, in consequence of an increase 0 usi- iiness produced by the dcfcndonts' works, ought. not to be taLen . into consideration by the jury. - ' ii \ , ' The opinion of the court was delivered by ' _ _ -- thson, G. J.-—-As the cause to to go to another jury, it is no. 7'. ocean to determine all the points ; and imply they amount at- -" Intendc with difliculty. The legislature eridcntly meant tolpro: bride for nothing that was not rcmediablu at the -common tipv, - .‘snd on the other hand, it was intended that every common on J. "injury should be rcdressed by the statutory remedy. A colrpo; ration then must he let into the benefit of it, or be left wit min - “redress; so that taking an srtiiical_ person not to lie-“til”? I'IB letter of the act, it is clearly within the equity of It, out I'm ‘ istatutory provision being remedial, Is. to be extended to ease: in equal mischief. Still it has been insisted, that the corpliirn ton plaintiff Was dissoivod, by having Otitl'tlcd to continue .t nah silic- ccssion to certain offices supposed to be integral parts sips] or y. These, however, wore supplied with officers do facts, n no i’was undoubtedly snilicient. to sustain its existence as to fllliflbfil‘i. It is now well understood, that the loss of an integri- par , Works I dissolution only to certain purposes; the Curlifilltlc ran- ehisc being ’suspcnded, but not extinguished. An optirc P2,] dissolution, being the consequence of permanent liltbdpn] l 5 city to restore the deficient part, never: happens it iere trip . r timote existence ofthc part is not litttllalicllfltlliio to a va urt. .. tiou, or other means of reproduction: and heroin tslpcf‘tc clear that a new election might be laid: i‘lne’priucip u “Fifi! sorted for satisfactory reasons in I‘Inihpr v._- ii tckluiiu, lI Mac, 690; and in Slot: v. Bloom, 5 Johns. _Ch. 303. we have to vczy case. There a corporation was not dissolved by an emission o clcct trustees for more than two years, thctncm icrs constituting the integral parts having remained in tau, and contilnucd- In 7 oflicc till others were elected; and hail the rule been at Inrl'llttfl, it was held that a forfeiture of the charter for abuse or neg not vet. Iv.-~2 ".\r‘ ‘1, \ ‘ “C: \ ha a t . ' - ‘ 24 3 ceramic CQUHT [Pneumonia (Lehlgh Bridge Company e. Lshlgh Coal and Navigation Company.) ofits franchise, must_ be declared by process and judgment of law, before the corporation can be treated asdefunct. Still fur- ther it was held, in First Parish, in Sutton v. Cole, ll Pichertng, 2L5, that the existence of a‘corporntlon plaintiff is to be brought in question only by plea in abatement; and the same view seems to have been talten by a tna'ority of the judges in M'ouumoi y. Rogers, 1 Mess. It. 159. ertainly the matter must be put In issue by such a plea, or at least one which denies the whole dc- elaration; for ending over e eciully tn the merits, as tree done here, clearly a mite the plainttlf's capacity to one. On all these grounds, then, the point of corporate existence was sufficiently established. , , The principlejinvolved in the exception, tltat the verdict is against low and ttbe evidence, though perfectly plain in itself, is more doubtful in respect of' its application to the fuels. The defendant had tlte same right to erect the dam at the particular place, that a proprietor bus to erect a dam on his own land; and if chargeable with no want of attention to its probable effect, is not answerable for consequences which it was itn essihlo to foresee and prevent. Where a loss happens exclusive y from an act of Providence, it will not be pretended that it. ought to be borne by him whose superstructure was made the immediate in- strument. of it. llad the timbers of this date been torn from its foundation by the violence of a lined, and carried with irresistis ble force against the bridge, the defendant could have been made liable but by proofthat the timbers had been left exposed with- out propt‘r fastening, during the season of high water, and ice, when such an event was to be expected. It tvill be seen, there- fore. that the concurrence of negligence with the act of l’rori- dent-e. Where the mischief is done by flood or storm, is necessary to fix the defendant with liability. [ have found no case illus- trative of this prinei do where the loss was occasioned by water, but it is plainly established by those in which the agent was lire. For instance, an action on the ease lies on the custom of the realm, against the master el'a house, ifa tire, accidentally hintilnd in it, consume the house or goods of another; and this, though it be kindled without th ltnowledge of the master, and by a o'er—- vent, guest, or any one else, who. has entered by his consent. [.25] l llol. 1,}..25; _‘.'a her. that); l Salk. . ‘lllll. It would be otherwise, however, if the fire were kindled by light- ning. In Turhzroil v. Stump, 1 Bulb. 13, the distinction is per- haps more intelliginy put. To an action on tltc custom of the realm, for negligently ltceping fire in a close, by which the lain- till"s grass was burnt in an adjoining close, it was objectet that the custom extends only to fire in tlto house which is within the party's power; but it true not allowed; “ for the fire in his l ‘ _ whether the mischonco be OF PENNSYLVANIA. 2o [Lehigh flridgl Company a. Lehiglt Coal and Navigation Company.) field," it was sold, "it! his fire, as well as that in his house; he - made it, and must. see that. it does no harm, or answer the dum- eges if it. does. Every man must use his own so as not. to hurt another; but if a sudden storm had risen which he could not etc , it was a matter of evidence, and he couhl have shown it." (S..0. Skinner, Gill, atnl Comyn's llep. 8‘3.) lt'rotn motives of sympathy for tile unfortunate master of a. house in nhinh a fire has originated, actions on the custom are abolished by the slot. 3 Ann, e. 31; but that there was nothing local or peculiar in the custom, is shown by Clay's ease, (Cro. Elie. 10,) in which it being mooted whether a man who shoots at a foul utt'l fires his own house, by which that of his neighbour is consumed, be liable on the custom, it was answered, that be is not, but that he is liable 'in an action on the can generally, for the injury is the some y negligence or misadventure. The ground work of the common law principle seems to be, tltatsnme egree'of negligence is ilnpulable in every case of accidental fire, protiuCed by human means; and it is universally just that a loss shall be borne by him whose not contributed to it. in the ease at llttr then, it trill be for the jury to inquire whether the defend- ant'used all proper precaution to prevent consequential injury. I It would seem t 0 river is between five and six hundred feet In breadth; that. the bridge is supported by three piers; that. in line dam placed between eighty and a hundred feet above it, a chasm was left for tlto passing of rafts, which directed the volume of the water against the centre pier; and tltut lltltt chasm was thus .left for at least six months during the season of rain and ice ‘tjllttlt high [loads are expected to prevail. It will become a question depending on a due consideration of these facts, whether danger to a pier thus exposed, was not. to be apprehended, and whether the agents of the defendant. were not bound to inquire into the nature of its foundation, and every circumstance that mightch- dueo to ajust estimate of the visit. It. will be worthy of imptiry, too whether the duration of the exposure was not unnecessary and unreasonable, lllttl whether the construction of tlto body of the darn ought not to have immediater preceded the permanent provision, if any were intended, for the accennnodation of those “who should prefer to use the bed of the river. Should the de- fendant be found Ilelin aunt in these respects, compensation will be made in damages; lltu measure of which, however, ought not to be the entire cost. of a new pier (the standard assumed by the jury in tlte present instance) unless the old one should be found altogether worthless. But the evidence is strong to show that it may last not only many years, but as long as it its foundation had not been *disturbcd, the eflect of the current being to [flu] fill up the excumtiou, and rather to repair the injury, i' [hf 26’ SUPREME comm: [Pfil‘lfldclplu'm [Lolligh Bridge Company 1:. Ltzhigh Con! nml Navigation Gun-puny.) llmn increase it- Concurring lllcn nil-h the jucigc who tried the cause, that tho damnch are excessive. we feel ourselves bound to direct another grin!= Judgment reversed and a new trial awarded. Oiled by Cnumel. CI W11. “3: 3 W. 49; 1 W. 290; 2 W. J: 5. 2m ; (UV. 3: S. Ill; 7 Ban, 35?; 5 II. 405; 7 H. l6. ll”; 8 ".76. 87; I" II. 63; 3 C. 3&3; 0 C. 78; It) 0. 2M; 12.0.1013; 2 Wright, 235; 9 Wright, 413; l S. 89; 4 S. lfi‘J, 318. ' Approved in. -I II. 398. Cited by the Cunrl, 2 W. In; 9 W. lflfl; 10 W. 8?; 1W. &. S. 3525 0 ‘ Butt. 3813; 111.142; 6 ".135; 3 0. I01. 0 o h n ...
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Lexington and Ohio - GASES SUPREME COURT OI’...

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