#### Union Canal Company *versus*Stump and Fisher. Same *versus*Taylor.

1. The act of April 2d, 1811, incorporating the Union Canal Company, provides for the assessment-of damages by a *diversion*of water from a mill.

2. Whether, after there has been an award of damages for the diversion of water by the Union Canal Company, the raising of a dam permanently so as to divert a greater quantity of water is a new taking, which may be the subject of an assessment for damages, not decided. It seems that it is a new taking.

3. Fehr *v.*Schuylkill Navigation Company, 19 P. F. Smith, 161; Spangler’s Appeal, 14 P. F. Smith, 387 ; Union Canal Company *v.*Reiser, 7 Harris, 134 ; Union Canal Company *v.*O’Brien, 4 Rawle, 385, approved. „

March 7th, 1876.

Before A&new, C.'J., Sharswood, Mercur, Gordon, Paxson, and Woodward, JJ.

*356Appeals from the Court of Quarter Sessions of *Perks County,*No. 68 and 69, to July Term, 1875, by the Union Canal Company, in proceedings to assess damages for irljury by raising thé dams of the appellants.

The proceedings in one case were upon the petition of "Wayne J. Stump and Samuel Fisher; in the other, by William Taylor and B. Frank Taylor.

The act of incorporation of the company wa,s passed April 2d, 1811; Pamph. L., 226.

The 9th section authorized the conqDany. to construct a canal from the Susquehanna River to the Schuylkill or Delaware rivers ; granting them the privilege of taking water from the Schuylkill River, and to continue the navigation from Reading, or any other place, through the interior country, by making use of the waters of the Schuylkill or any other creeks or streams, on the intended route of the canal; and to make such basins, reservoirs, collateral cuts or channels, as they may think fit, etc.

The 13th section provides: “ That if, in the opinion of the president and managers of the company, the introduction and use, of any different mode or device, or any improvement hitherto adopted, or such as may hereafter anywhere be invented in the system of internal navigation, will be beneficial, it shall be lawful for them to make use of and apply the same from time to time, and as well for such purposes as for the necessary prosecution of the same, the said president and managers, and their engineers, workmen, and laborers,, to enter into and upon .... the land and lands intended or supposed to be the proper route for the said canal and lock navigation; and shall have the powers to purchase so much land along the tract of the canal and adjacent thereto, and tenements, mills, mill-ponds, water, watercourses, or other real hereditaments, as shall, in their opinion, from time to time be necessary ; and, in default of purchasing, it shall be lawful for the Courts of Quarter Sessions, etc., on the application of the owner of said ground, or of the said president and managers, to appoint three suitable and judicious persons of any neighboring county at their discretion, or at the request of either party to award a *venire*directed to the sheriff of any adjoining county, to summon a jury of disinterested men in order to ascertain and report to the said Court what damages, if any, have been sustained by the owner of the said grounds by reason of the said canal or other works ; which report being confirmed by the Court, judgment shall be entered thereon, and execution on motion may be issued in case of non-payment of the money awarded, with reasonable costs, to be assessed by the Court; and it shall be the duty of the *357jury, in valuing any lands, tenements, or hereditaments, to take into consideration the advantage derived to the owner or owners of the premises' from the said navigation passing through the same.”

On the 5th of January, 1871, "Wayne J. Stump and Samuel Fisher petitioned the Court' of Quarter Sessions of *Berks*County, setting forth that they “.were seized in their demesne as of fee as tenants in common of a tract of-land, . . . along which said tract the Tulpehoeken Creek flows, adjoining, etc., ... on which are erected a large grist-mill, dwelling-house, and other buildings, aiid a dam across the said Tulpehoclcen Creek, by the water power from which said creek and dam the said grist-mill is driven and operated; . . . that on and across the said Tulpehoeken Creek, on the lands of John S. Reed, at a distance of about eight hundred yards above said dam, there is now and for a number of years has been a certain dam erected by the Union Canal Company as a feeder for their canal, the water from which last-mentioned dam mainly supplied the dam of your petitioners, and from which said dam on Reed’s land an artificial race or feeder conducted a portion of the water of said creek into the said canal. That on and across the said Tulpehoeken Creek, on lands of Isaac G-raeff, about one and a quarter miles above the last-mentioned darn on Reed’s land, there is and for a number of years past has been another dam, also erected by the said Union Canal Company as a feeder for their canal, the water from which has largely contributed to supply the dam at Reed’s. From said dam on Graeff’s land an artificial race or feeder conducted a portion of the water of said creek into the Union Canal. In addition to the supply of water from the dam on Graeff’s land, the Reed dam is also largely supplied from the Millbach, a tributary of the Tulpehoeken, and entering it a short distance below Graeff’s'dam; that-on or about the first day of August, 1868, and on divers days and times between that day and the first day of April, A.I). 1870, the said Canal Company . . . raised the dam on said Graeff’s land to an additional height of about eight inches, . . . and thereby causing a greatly additional flow of water from the said dam and the creek entering the same through the artificial race or feeder into the said Union Canal, and which said additional flow of water was not again returned into said creek above the dam of your petitioners ; that in consequence of said additional flow and diversion of the water into said canal the amount supplied from the dam on said Graeff’s land to the dam on Reed’s land (and in consequence to the petitioners’ dam through the Reed dam), was very greatly diminished and for a considerable part of the *358year,.almost if not entirely taken away; and the water which formerly flowed into the dam of your petitioners from the Graeff feeder, was in a great measure lost to them in the running of their said mill; that on or about the first day of August, 1868, . . . the said Union Canal Company . . . raised the dam on Reed’s land to an additional height of four inches or thereabouts, . . . thereby causing a greatly increased flow of water from the said dam and the creek entering the same through the artificial race or feeder aforesaid into the said Union Canal,.and which said additional flow of water was not again returned into said creek above the mill of your petitioners, in consequence of which said diversion by the increased flow of water into the,said canal, the water supplied to the dam of said petitioners through the Millbach and the said feeder dam at Reed’s was very greatly diminished, and for a considerable portion of the year was almost if not entirely taken away.” . . .

On the same day, January 5th, 1871, William Taylor and B. Frank Taylor petitioned to the same Court, setting forth that they owned a tract of land in the same county through which the Tulpehocken Creek flowed and the Union Canal , passed ; on which tract were erected a grist-mill, saw-mill and forge,, and a dam across Tulpehocken Creek, by the water-power from which the mills and forge were driven. The petition then set out the matters as to the Canal Company’s dams, their raising them, etc., and the injury to these petitioners, as in Stump and Fisher’s petition.

The prayer in each petition was, that the Court would award a venire to the sheriff of an adjoining county to summon a jury to ascertain and report the damages'sustained by the petitioners respectively by reason of the matters set out in the petition.

. A venire in each case was issued to the sheriff of Lancaster County, and the jury summoned hy him found that the company had raised their feeder-dam on Graeff’s land seven inches, thus causing an increased flow of water from the dam and creeks to the canal and “ proportionably diminishing the water flowing ” over the dam to the feeder-dam below on Reed’s land; that the company raised the feeder dam on Reed’s land four inches, causing an increased flow of water from the dam and creek to the canal and proportionately reducing, diverting and diminishing the quantity of water to the dams and mills of the petitioners, and not returning it again to the creek and dam above their dams and mills, etc.

The jurors assessed the damages of Stump and Fisher at 1,1300, and of the Taylors at $1000.

*359The report of the jury was confirmed nisi August 14th, 1871. On the same day the canal company moved to quash the venires, on the ground that under their charter they Avere not “ responsible for injuries consequential in their nature, as appears from the petition and the report' of the jury.” . .

. They also filed exceptions.

3. That the petition of the petitioners sets forth that they were injured and damnified by the acts of the said the Union Canal Company of Pennsylvania, between the first day of August, A. D. 1868, and the first day of April,. A.I). 1870; that if there was injury done contemplated by the charter of the said the Union Canal Company of Pennsylvania, to the said petitioners to be paid by the said the Union Canal Company of Pennsylvania, the injury, if any, was a continuous one and should be compensated in whole and not in part.

5. That George Xeiser, in 1852, presented his petition to the Quarter Sessions of Berks County aforesaid, alleging that the said the Union Canal Company of Pennsylvania had diverted all the Avaters of the Tulpehocken, and a venire issued, a jury Avas called by the sheriff of Lancaster County, and they awarded $2100 for the diversion of said stream, and that the petitioners derive their title from and through said George Keiser, and therefore they cannot recover any damage from the said the Union Canal Company of Pennsylvania. .

6. That the said the Union Canal Company of Pennsylvania was empowered by their charter to take the waters of Tulpehocken Creek for the uses of their said canal, and having taken the same, at a distance of about eight hundred yards above the petitioner’s land, they are not liable to damages for the diversion.

7. That there Avasno agreement between the Union Canal Company of Pennsylvania and the petitioners to supply the said petitioners with any Avater for their use to flow over their said dam.

The Court, Hagenman, P. J., overruled the motions to quash and the exceptions; confirmed the report absolutely, and entered judgment in each case for the amounts respectively assessed by the jury. ,

The petitioners took a certiorari from the Supreme Court.

They assigned for error: overruling their motion to quash the venire ; overruling their exceptions and confirming the report of the jury, and entering judgment on the report.

*C. G. Derr*and *W. M.*Derr, for the certiorari!

The injury *360set forth in the petitions was consequential, and therefore no property was taken; the venire should have been quashed: Union Can. Co. *v.*O’Brien, 4 Rawle, 358.

Indirect and consequential injuries to property, and acts tending to depreciate the value, but which do not amount to a real taking., are outside of the constitutional prohibition : Monongahela Navigation Company *v.*Coons, 6 W. & S., 114 ; McKinney *v.*Monongahela Navigation Company, 2 Harris, 66; Philadelphia and Trenton Railroad Company’s Case, 6 Wharton, 25 ; Mifflin *v.*Railroad Company, 4 Harris, 192 ; Henry *v.*Pittsburgh and Allegheny Bridge Company, 8 W. & S., 85 ; Watson *v.*Pittsburgh and Connellsville R. R. Company, 1 Wright, 479; Spangler’s Appeal, 14 P. F. Smith, 387. Neither the State, nor a corporation authorized by it, is answerable for consequential damages occasioned by the construction of a highway further than is specially provided for in its charter. If no remedy is given, where the property is not taken, none exists. Cases cited *supra ;*also West Branch and Susquehanna Canal Company *v.*Mulliner, 18 P. F. Smith, 357.

*A. Gr.*Green, contra,

cited Union Can. Co. *v.*O’Brien, *supra ;*Keiser *v.*Union Can. Co., 7 Harris, 134 ; Spangler’s Appeal, 14 P. F. Smith, 387; Fehr *v.*Schuylkill Nav. Co., 19 Id., 161.

Judgment was entered in the Supreme Court, March 13th, 1876.

Per Curiam :

That the 13th section of the act of April 2d, 1811, incorporating the Union Canal Company, provides for the assessment of damages, caused by an actual diversion of water from a mill to its manifest injury, is plain. The power to purchase mills, mill-ponds,>water, watercourses or real hereditaments, is given in express terms, and *in default of purchase*the owner of the ground, on which the injury falls, is empowered to proceed by petition for an assessment. The right to have an assessment is, therefore, coextensive with the company’s right to, purchase, where an injury clearly falls upon the owner of the ground injured by the privation of the water. This was settled in reality by the case of Union Canal Company *v.*O’Brien, 4 Rawle, 358; the injury being an “ inevitable consequence,” in the language of Justice Kennedy. The followiugcases support this proposition: Union Canal Company *v.*Keiser, 7 Harris, 134; Spangler’s Appeal, 14 P. F. Smith, 387 ; Fehr *v.*Schuylkill Nav. Company, 19 P. F. Smith, 161.

*361As this case appears before us in the record, the proceeding to assess damages is for an original inquiry, and does not involve a question of a second application for damages done to the same subject for which damages had been atvarded before. How far the former award covers the subject now before us, does not appear, in any form of pleading, to make it a proper question for the Court; while as a question of fact we cannot inquire into it for the reason that the evidence is not brought up by the certiorariCanal Company *v.*Keiser, *supra.*We do not decide the question now, because it is unnecessary, but in the eases cited above, there are intimations that the raising of a dam permanently, which diverts a greater quantity of water from an owner’s land is a new taking which may be the subject of an assessment of damages.

Proceedings affirmed in each ease.