#### Bald Eagle Boom Company *versus*Sanderson.

1. The charter of a boom company provided that if any person should “suffer damage by the exercise of powers” granted, the Common Pleas should cause the damages to be ascertained by three viewers appointed by the Court, and if either party should be dissatisfied with their report, “the Court shall by jury determine the amount of such damages” in the “manner as other like cases are determined.” Some time after the boom had been constructed it was so filled with logs as to obstruct the stream and overflow the plaintiff’s land. *Held,*that damage resulted from the exercise of the powers of the corporation, and that damages were to be assessed as above provided.

2. This was not a case of mere consequential damages; a mode having been provided by the charter, the remedy must be by that mode.

3. An improvement corporation is not responsible for consequential damages unless the liability is imposed as a part of the price of the franchise. *Per Mayer, P. J.*

4. When a charter gives compensation, the provision must receive a liberal construction. *Id.*

March 29tb,1876.

Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson, and 'Woodward, JJ.

Error to the Court of Common Pleas of *Clinton*County, No. 181, to January Term, 1875.

These proceedings commenced July 13th, 1872, by a petition by William C. Sanderson for viewers to assess damages, which he alleged he had sustained by reason of the Bald Eagle Company having caused the flooding of his land.

On the 13th of April, 1859 (Pamph. L. of 1860, p. 863), the Bald Eagle Boom Company was incorporated. They were authorized to erect and maintain on the Bald Eagle Creek, at a point designated in the act, a boom or booms, with piers, *403“for the purpose of stopping and securing logs, masts or spars, and other lumber, floating upon said creek, and erect such piers, side branches, or shore booms as may be necessary for that purpose,” with the proviso that the works should not be so constructed as to prevent the safe passage of rafts, etc., and not impede the navigation of the creek or its branches.

The 3d section enacted: That if any person should “suffer damages by the exercise of the powers herein granted to said corporation, and the amount thereof cannot be agreed upon by the parties, nor some suitable person or persons agreed upon to estimate the same, the Court of Common Pleas, having jurisdiction.in the county where the boom- or booms are situated, shall, upon application of the parties aggrieved, cause said damages to be ascertained by three disinterested freeholders of the same county, to be appointed by the said Court, and who shall make report to the said Court: . . . . Provided, however, That if either party be dissatisfied with the award of said commissioner’s, and shall, at the time at which the said award is presented for confirmation, apply to said Court for a trial by jury in the manner as other like cases are determined, the Court shall, by jury, determine the amount of such damages accordingly; .... said corporation shall not take any private property until compensation be made, or adequate security be given therefor, before such property shall be taken..”

* * *

“See. 8. That for the purposes aforesaid, the said corporation be and are hereby authorized and empowered to purchase, hold, and possess any real estate adjacent to said boom or booms, or convenient thereto, with leave to build all such buildings as may be deemed necessary for the convenient management of the affairs of said corporation; and for the same purposes their agent, and those in their employ, are hereby empowered to use and occupy the lands on the shore of said creek, so far as may be necessary, at the place or places where said booms are erected, and at such other place or places as may be necessary for rafting and securing logs and other lumber, and to pass and repass on foot to and from said boom or booms, over the lands on both sides of said creek, for the purpose of erecting said boom, or making repairs from time to time, and generally for doing all matters and things necessary for the full accomplishment of the object of this corporation; subject, however, to pay such damages as may arise in the prosecution of such objects or purposes, the damages to be ascertained as in the third section of this act.”

*404The petitioner alleged that he owned a tract of land near to and adjoining the Bald Eagle Boom ; “ that by reason of the exercise of thp powers granted to the said Bald Eagle Boom Company .... your petitioner suffers great damage ; that the said company had erected a second boom reaching entirely across the said Bald Eagle Creek, completely closing the channel whenever the logs are in said boom, and thus forcing the water over the lands of your petitioner.”

The petition averring that the parties had failed to agree, etc., asked for the appointment of viewers to ascertain the damages, etc.

Viewers were appointed July 13th, 1872.

On the 9th of September, 1872, the viewers reported that by reason of the construction of booms by the company the channel of the Bald Eagle Creek is at times almost if not entirely obstructed; that about the 29th of June, 1872, the premises of Sanderson, the petitioner, were overflowed by water from the said creek, and that the overflowing of the premises was caused by, and owing to, the obstruction of the channel by the company. They assessed the damages sustained by Sanderson at $800.

On the 11th of September, 1872, on the petition of the company, the Court directed an issue to be tried by a jury to determine the amount of damages sustained by the petitioner, as provided by the 3d section of the act of incorporation, Sanderson to be the plaintiff in the issue, and the company the defendants; the petition of the plaintiff to stand as the declaration, and the defendants to plead “not guilty.”

The case was tried September 22d, 1874, before Mayer, P. J. The plaintiff offered to prove by himself and other witnesses, “ that he is the owner of a tract of farm land, containing one hundred and sixty-flve acres, situate in Bald Eagle township, Clinton County, adjoining the Bald Eagle Boom, in said township; that about the 25th day of June, 1872, about forty acres of this land was overflowed by water; that the overflow of the water on plaintiff’s land was caused by an obstruction in the Bald Eagle Creek, consisting of logs, etc., contained in defendants’ boom. That defendants erected a boom prior to said time, in Bald Eagle Creek, at a point beginning above the mouth of Pishing Creek, on the south side of Bald Eagle Creek, and extending to the lock on the north side of said creek; thence up the said creek a distance of three miles, more or less. That about the 25 th day of June, 1872, said'Boom Company caused an unusual quantity of logs to be floated into said boom, and detained in the boom. That they caused the entire channel of the stream *405to be blocked up or gorged so that the natural channel of the stream was entirely filled up with logs. That in consequence of said gorge the water was displaced from the channel of the stream and was forced out over the banks of the stream, and was caused to overflow plaintiff’s said land, thereby destroying the grain growing upon plaintiff’s land, tearing away the fences, removing the soil, and doing other injury to said land.” Offered for the ' purpose of sustaining plaintiff’s cause of action and the damages he has sustained.

Defendants objected to the offer, excepting that the plaintiff is the owner of the land stated.

1. Because evidence of damage resulting from wrongful conduct and acts of the defendant is not admissible in this proceeding.

2. Because the evidence offered, if proven, would show consequential damages for which the defendant is not liable.

3. Because the evidence offered is too indefinite, remote, and uncertain.

4. Because the defendant is not liable for the damage of any particular flood, or for damages resulting from a jam of logs in said boom.

The evidence was admitted, and a bill of exceptions sealed for the defendants.

The plaintiff testified that in June, 1872, “there was a flood in the creek, the logs came down and stopped the lower boom ; they .formed a jam ; it threw the water back on Fredericks, then on me. It went over about forty acres; drowned out everything I had planted on it.” He testified that he had corn and potatoes in; lost two-thirds of the corn, and all his. potatoes. About three acres had the top washed off ;■ fences taken away. Before the flood the condition of the cornfield was fine. His farm was sunk about a foot below what it ought to be. The logs backed the water; it was an ordinary flood; the creek was not out of the banks till the logs came down and caused the jam; they filled the boom.

*Hebron Welsh*testified, that the jam was solid to the bot: tom of the creek; they were sticking on their ends. It was an ordinary flood; did not overflow the banks ; the logs came down in a body. As soon as they reached the lock they jammed, and threw the water back; it boiled right out in the field. . . . The overflow of the plaintiff’s land was caused by the obstruction of the boom. Had it not been for that obstruction, there wodld not have been an overflow of plaintiff’s land. . . . Covered the field to a .depth of about three feet.

There was very much other evidence that the flood was *406an ordinary flood; that there would have been no overflow of plaintiff’s land except for the jam of the logs, and as to the injury done to the plaintiff' and the amount of his loss.

The defendants gave evidence that the boom was commenced in 1858,1859, and had been under construction ever since, not finished yet; some piers put in in the winter of 1859; the main or upper boom was more than two miles from the lock at Flemington; the boom was built like other booms ; the logs belonged to lumbermen ; the company did not own any; had nothing to do with putting them in, nor had they any control over the quantity put in. A shear boom was put in at the lock in 1861; it was put in to handle, the logs loose down the creek and put them into the canal; it was to hold the logs until they were put through the lock ; the boom could not be operated without that receptacle; it- was not intended to store logs, only to hold them while passing through the lock. The .flats were under water, daring high water, before the boom was built. The shear boom, in its ordinary working, did not affect plaintiff’s land in any way.

The defendants then offered to prove:

1. (That the field for injury to which damage is claimed, was worth as much in 1861, immediately after the erection of the safety boom complained of, as it was immediately before such erection); that said land is worth as much.now as it was prior to the flood of June, 1872; and that the erection and ordinary operation of said safety boom has had no effect whatever upon the overflow upon said land of the waters of Bald Eagle Creek, or in any way upon the value of said land; and what is now the value of the land (what it was in 1861, and what it was prior to the building of the safety boom), for the purpose of showing that the plaintiff sustained no such damages as is recoverable in this form of proceeding.

2. Because any injury sustained by-plaintiff caused by the action of the boom company in the exercise of then-powers under their charter is to be compensated in damages.

Plaintiff objected to the offer.

The Court rejected the part.of the offer contained in brackets, and admitted the remainder, and sealed a bill of exceptions for the defendants.

N. W. Fredericks, a witness for defendants, in answer to a question from the Court, said that he supposed there was no difference in the value of the land before the flood of 1872 and its present value; he further said that he did not think the erection of the shear boom affected the value of plaintiff’s land in any way ; the obstruction of the 'logs would not have had the effect of throwing the water out.

*407Another witness testified that on the night of the 24th of June, 1872, the first logs carne through, and on the 25th there were about two thousand logs in the shear *boom;*witness thought the cause was that there was a post broken in the upper boom; logs dodge under the boom iu any high water; the company cannot possibly prevent such a jam: the jam had no influence in turning the water out of the channel ; the water could pass all along under the jam.

The defendants gave much other evidence of the same character: also to show that the booms were in good order, etc. •

The following are points of the defendant:

1. Plaintiff having never made any effort to agree with defendant upon the amount of damage sustained, or upon the choice of appraisers, cannot institute or sustain these proceedings.

2. If the jury believe that the injury complained of arose from defendant’s negligence, either in the original construction or subsequent management of the boom, or in not repairing defective piers, there can be no recovery in this form of action.

3. If the jury believe that the injury arose from an extraordinary accident or breaking of the main boom, without negligence upon the part of the defendant, there can be no recovery in any form of action.

4. The measure of damages is the depreciation in the value of the plain till’s land, by the exercise of the powers given by the defendant’s charter, and that the injury named in plaintiff’s petition and proved by his witnesses is too narrow and uncertain to be submitted by itself to the jury as a basis for estimating such depreciation.

5. The damage complained of and proved is not by itself the subject of compensation in these statutory proceedings.

6. The damage must be assessed once for all, and must be measured by the deterioration in plaintiff’s land caused by the erection of defendant’s booms iu 1860 and 1861, at the time said booms were completed and the right to institute this proceeding had accrued, of which damage no demand is made in plaintiff’s petition or evidence offered by the plaintiff.

7. The defendant is not liable for consequential damage.

The Court answered the first point as follows: The defendant, after the award of the appraisers was filed, having appealed from the award and demanded a trial by jury, cannot now object to any informality in the appointment of the appraisers, and we therefore answer this point in the negative.

*408The third point was affirmed, and the other points -were all negatived.

The Court charged:

“ . . . At the threshold of the case certain legal questions have been presented for the consideration and determination of the Court, which it will be our duty to consider and determine. They involve the right of the plaintiff to sustain this proceeding, and if determined against him it will be an end of the controversy, and there will be no questions of fact to be submitted for the determination of the jury. It is contended by defendants’ counsel that no provision has been made in the charter of the defendants for the payment of consequential damages, and as the damages claimed in this proceeding are consequential in their character, no recovery can be had in this form of proceeding, and if any liability accrues on the part of the defendants recourse must be had to an action at common law.

“ It is well-settled law in Pennsylvania that a corporation empowered to make a public improvement, such as this corporation, is not responsible for indirect or consequential damages, unless the liability to pay for them is imposed as a part of the price of the franchise. In many of the charters granted by the legislature this obligation to make compensation for consequential damages has been imposed, while in others it has been omitted. We must, therefore, have recourse to the charter of the defendants to determine the extent of their liability under it: The eighth section of the act provides for'the payment of damages consequent upon the taking, using, and .occupying the land along the shores of the creek for the objects and purposes of the corporation, the damages to be ascertained as provided in the third section. The latter part of the third section authorizes the company to take private property upon making compensation or giving adequate security therefor. This provision does not extend to the allowance of consequential damages, but has reference to making compensation for property taken within the meaning of the constitution. The first part of the third section provides for the ascertainment of damages suffered by any person or persons by the exercise of the powers granted to said corporation. These powers are enumerated in the second section, viz., to erect and maintain a boom or booms for the purpose of stopping and securing logs, etc. In order that this part of the third section may be operative and have effect, it is reasonable to infer that these damages are not such as might arise from the taking of private property, or such as might be occasioned to riparian owners, as these are specifically enumerated and provided for in the *409latter part of the third section and in the eighth section. What damages were, then, in the contemplation of the legislature. under the third section, for which compensation ought to be made? We are of the opinion that they are such as might result from the exercise of the powers granted to the corporation, and these powers, as we have already seen, consist in the erection and maintenance of a boom for the purpose of stopping and securing logs and other lumber. And we are therefore of the opinion that if the damages claimed by the plaintiff resulted from the acts of the defendants, in the operating and maintaining of their boom, the defendants are liable to respond by the terms of their charter. This we conceive to be a reasonable and fair construction of the charter; for, as the Supreme Court has said in a number of cases, where there are clauses in acts of incorporation giving compensation, these clauses must receive a liberal construction; and, aswas said by Justice Strong in the ease of Watson *v.*The Pittsburgh and Oonnellsville Railroad Company, 1 Wright, 469, ‘ The construction which has been given to charters for improvement companies generally, has been that they are intended to secure compensation for all such injuries as the common law recognizes as fit subjects for compensation.’

“ Such being our construction of the charter of the defendants, we say to the jury that if the damages claimed by the plaintiff' resulted from the acts of the defendants in the exercise of the powers granted to said corporation, or, in other words, from the maintenance and operation of its booms, then the plaintiff is entitled to recover in this form of proceeding. He would have no other form of remedy, as the-legislature has provided a specific mode by which damages-are to be ascertained and determined; that mode must be-pursued, and would exclude all other modes of procedure.

“ It then becomes the duty of the jury to pass upon the-facts, and ascertain from the evidence whether the injury complained of by the plaintiff resulted from the acts of the-defendant in the maintenance and operation of its booms.

“ (It is alleged on the part of the plaintiff that on or about-the 25th day of June, 1872, whilst the defendant was engaged in operating its booms, by floating and stopping logs-in it, that a portion of the logs in said boom came down the-creek in a jam and w’ere caught and lodged against the shear or safety boom, placed in the stream by the defendant, and. that this body or jam of logs striking and lodging against-the shear boom, was piled up or jammed in the.creek to suck an extent that they obstructed the wáter in its natural flow,, and forced it over upon the land of Mr. Fredericks, and from. *410his land upon the land of plaintiff. And it is alleged, in consequence of this overflow, the plaintiff lost about two-thirds of a crop of corn, a crop of potatoes, and about three acres of his land were washed away. Eor these injuries he seeks to recover in this action whatever amount of damages the evidence satisfies the jury he has sustained.

“ On the other hand, the defendants deny that this overflow of plaintiff’s land was caused by any act of theirs, in the operation and maintenance of their boom, and allege that the overflow was occasioned by a sudden rise in Bald Eagle Creek; that the place where the water flowed in upon the land of Fredericks was a very low place in the bank of the creek, and the water having risen suddenly it flowed in upon Fredericks’s land in its natural course, and not by reason of this jam or obstruction in the creek. Whether this overflow of the plaintiff’s land was the result of a sudden flood in the creek, or whether it resulted from the fact that the jam of logs obstructed the creek, and thereby prevented the water from flowing down the creek, and forced it over upon the land of the plaintiff’, is for the jury to ascertain and determine from the evidence.

“ There is a conflict of testimony between the witnesses of the plaintiff and defendant in regard to the cause of this overflow ; those of the plaintiff allege that when the upper boom broke, and this large body of logs came down the stream, they formed a jam at the shear boom, solid to the bottom of the creek, and that in consequence of this solid mass of logs becoming jammed in the bed of the creek, the water of the stream was unable to pass down in its natural channel, and sought another channel above and across the lands of Mr. Fredericks and the plaintiff. The boom-master and other witnesses of the defendant state that the logs lay but two or three feet deep in the creek, and that the water had full opportunity to pass under the logs, and that if there was any flooding of plaintiff’s land it was occasioned by a sudden rise of water iu the creek and not by this jam of logs. From this evidence the jury must determine this question of fact, whether the overflow of plaintiff’s land was occasioned by the acts of the defendants in stopping this jam of logs in their boom, and thereby filling the .bed of the creek so as to force the water over and upon the land of the plaintiff If it did, then the plaintiff is entitled to be compensated to the extent of the damages he has sustained, whatever the jury ascertain from the evidence the amount of the damage to be.) If this overflow was not occasioned by or did not result from the acts of defendants, your verdict must be for the defendant. . . . . The jury must determine, in the first place, whether *411the damages claimed were occasioned by the acts of defendants in the operating and carrying on of the boom. If they did, then render a verdict for the plaiutiff for súeh an amount of damages as, under all the circumstances, you shall conclude would reasonably and fairly compensate him for the injuries sustained.”

The verdict was for the plaintiff for $700.

The defendants took a writ of error. *

They assigned for error the rulings of the Court on the questions of evidence; the denial of the defendants’ second, fourth, fifth, and sixth points, and the part of the charge in brackets..

*C. Corss*and *C: G.*Furst, for plaintiffs in error.

The measure of damages is the difference between the value of the land before, and after the injury done : Schuylkill Nav. Co. *v.*Thoburn, 7 S. & R., 422. The damages being consequential, compensation is to be recovered in an action on the case: Hannum *v.*West Chester, 13 P. F. Smith, 480; Miffin *v.*Railroad, 4 Harris, 192; Schuylkill Nav. Co. *v.*Farr, 4 W. & S., 362. In assessing damages against a corporation the rule is the same whether regulated by statute or not, they are to be measured by the value of the property and the deterioration suffered: Woodward *v.*Webb, 15 P. F. Smith, 282. The charter makes no provision for any proceeding to recover damages for a tort; if there were damage here it arose from negligence, which is a tort; this form of proceeding therefore cannot be allowed: Sunbury and E. R. R. *v.*Hummell, 3 Casey, 99; Pittsburgh, F. W. & C. Railway *v.*Gilliland, 6 P. F. Smith, 449.

*H. T. Harvey*and *A. 0.*Furst, for defendant in error.

Consequential damages may be assessed against a corporation if their charter allows it: Buckwalter *v.*Black R. Bridge Co., 2 Wright, 281; Monongahela Nav. Co. *v.*Coons, 6 W. & S., 101; New York & Erie Railroad Co. *v.*Young, 9 Casey, 180, 181; West Branch Canal Co. *v.*Mulliner, 18 P. F. Smith, 361; Delaware Division Canal Co. *v.*McKee, 2 Id., 117 ; Schuylkill Navigation Co. *v.*McDonough, 9 Casey, 73 ; Pottstown Gas. Co. *v.*Murphy, 3 Wright, 257 ; Watson *v.*Pittsburgh & Connellsville Railroad Co., 1 Id., 469.

Acts of incorporation are to be taken most strongly against the companies: Packer *v.*Sunbury & E. R. R., 7 Harris, 218 ; Commonwealth *v.*Erie & N. E. R. R., 3 Casey., 339. Damages are tó be estimated at the time when the injury was complete: Thoburn’s. Case, *supra.*The rule is, that the right to proceed by petition remains, even if the *412injury complained of resulted from acts not authorized by the charter, but which were done in pursuance of the charter: Schuylkill Navigation Company *v.*Loose, 7 Harris, 15 ; McKinney *v.*Monongahela Nav. Co., 2 Id., 65; Fehr *v.*Schuylkill Nav. Co., 19 P. F. Smith, 168.

Judgment was entered in the Supreme Court, March 31st, 1876.

Per Curiam:

This case depends upon the peculiar terms of the third section of the charter of the defendants below. It provided a special mode of proceeding to determine the damages of any person suffered by him through the exercise of the powers granted therein to the corporation. The chief power conferred on the company was that of stopping and securing logs, masts, spars, and other lumber floating upon the creek. The boom and all its attendant fixtures were but the means to this end. Hence, if the company in the exercise of this power of stopping and securing these floats, filled the boom to such an extent as to cause the logs to jam and obstruct the passage of the water, so that it overran the banks of the stream, and thus caused damage to an adjacent landowner, the case fell directly within the remedy provided by the act. Cases of merely consequential damages, not provided for in the charter of incorporation, are not precedents for this, for here the company is proceeded against according to its own charter.

Judgment affirmed.