Argued October 6, 1932. This appeal is from the refusal to open judgment, and to grant a new trial on the ground of after-discovered evidence. The petition was filed after the term at which judgment was entered and after it was affirmed by this court.
Suit was brought in trespass in June, 1930, to recover compensation for damage to springs on plaintiffs' farm alleged to have been caused by defendant's mining operations. The defense was that the interference with the flow of the springs resulted from drought and not from mining. The issue so made was tried in January, 1931, with a verdict for plaintiffs; January 20, 1931, a motion for a new trial was made; April 24, 1931, supplemental reasons for a new trial were filed. This motion was not disposed of by the court below until January 4, 1932, when judgment for plaintiffs followed. An appeal to this court was taken to March Term, 1932, and was argued March 21, 1932. The judgment was affirmed April 11, 1932 (see 307 Pa. 264) . On April 28, 1932, a petition for reargument was filed in this court; it was refused May 9, 1932. On May 17, 1932, the petition to open was filed in the court below; plaintiffs demurred; *Page 228 the petition was dismissed and the present appeal was taken.
Judgment was entered January 8, 1932, during December term. The next term of court began on the first Monday of March, 1932. The petition contained no averment that the judgment was procured by fraud or was otherwise subject to any jurisdictional infirmity; nor was any equitable ground of interference alleged. Ordinarily the term rule would be sufficient to justify the action of the court: Fisher v. Ry. Co., 185 Pa. 602, 40 A. 97; Penna. Stave Co.'s App., 225 Pa. 178,73 A. 1107; Salus v. Fogel, 302 Pa. 268, 153 A. 547. But as the appeal to this court was taken in time to make it a supersedeas during the term at which judgment was entered (the effect of which on the term rule we need not decide) we have considered the application on its merits. "To entitle a defendant to a new trial on this ground [after-discovered evidence] the evidence must have been discovered since the trial, and be such as could not have been obtained at the trial by the use of reasonable diligence; it must not be simply corroborative or cumulative or merely to impeach the credibility of a witness; and it must be such as would likely result in a different verdict if a new trial were granted: Com. v. Brady, 76 Pa. Super. 488; Com. v. Carter, 272 Pa. 551; Com. v. Flanagan, 7 W. S. 415. Such an application is not governed by the strict technical rules applicable to a writ of error, but is addressed to the sound discretion of the court (Boyd v. Boyd, 1 W. 365, 366), and the exercise of this discretion by the court in refusing a new trial will be reversed on appeal only where it has been clearly abused: Com. v. Hine, 213 Pa. 97 [62 A. 369]; Hunter v. Bremer, 256 Pa. 257,266 [100 A. 809]:" Com. v. Mellon, 81 Pa. Super. 20, 26.
The petition to open the judgment avers that: "Since the trial . . . . . . defendant has learned . . . . . . that said springs have not been destroyed by any acts of defendant . . . . . . but that . . . . . . when shortly after said trial, rainfall *Page 229 set in, said springs began to flow in a normal and natural manner; that at all times since the summer and fall of 1931 having been a season of normal though not excessive rainfall, said springs flowed freely and normally . . . . . . that such condition now continues. . . . . . That the official figures of the . . . . . . weather bureau . . . . . . for the year 1931 in the general vicinity of plaintiff's land, were not available . . . . . . until about March 1, 1932 . . . . . .;" that "had these figures been available at the time of the trial, defendant would have offered them in evidence and they would have conclusively shown, and will show, if defendant is permitted to offer them hereafter, that the 1931 rainfall upon and in the vicinity of plaintiff's land was merely a normal rainfall and did not and could not have off-set or made up for the effects of the unusual and disastrous drouths of 1930 which accentuated the effect of the drouths of the several preceding years . . . . . .;" that with such evidence the verdict would probably be for defendant.
In affirming the judgment when the case was here before, we said: ". . . . . . the court was justified in submitting to the jury the question whether or not the drying-up of plaintiffs' springs was caused by defendant's mining operations." As the defendant contended at the trial that the prolonged drought during 1928, and subsequent years, and not the mining, caused the damage, it seems clear that the alleged after-discovered evidence is merely cumulative and corroborative.* But that is not the only *Page 230 fact for consideration in determining whether there was abuse of discretion below. It will be noticed that in its petition, defendant does not state specifically when it learned the alleged fact on which it grounds its application; it merely avers that the evidence was discovered "since the trial;" as time is one of the decisive elements in the consideration of the question, such an indefinite statement of the time of discovery is without value. Then, too, petition does not aver why the data collected from day to day by the representatives of the weather bureau in the vicinity were not available from time to time, as gathered, as is generally the case. It is to be observed, too, that no reason is given for not moving on or about March 1, 1932, as soon as the information is said to have been acquired. At that date, by appropriate petition, defendant could have brought the matter to the attention of this court before the appeal was disposed of on the merits as appellant then presented them. Instead of applying to the court below, as defendant apparently might have done, during the long period between the date of the verdict, January 17, 1931, and the time of taking the appeal to this court, January 29, 1932, or of thereafter applying to this court prior to argument March 21, 1932, as was done, for example, in Ralston v. Phila. Traction Co. (No. 2), 267 Pa. 278, 282, 110 A. 336), or prior to the decision of April 11, 1932, defendant filed a petition for reargument, as has been stated, and even then said nothing about the alleged after-discovered evidence. In such circumstances, we cannot say that *Page 231 there was abuse of discretion in dismissing the petition: Hinman v. Hinman, 283 Pa. 29, 32, 128 A. 654; Ice Co. v. R. R. Co., 253 Pa. 54, 66, 97 A. 1051; Com. v. Delfino, 259 Pa. 272,280, 102 A. 949.
Order affirmed.
Justices SCHAFFER and MAXEY dissent.
* In the petition for reargument filed in this court in April, 1932, appellant states: "One of plaintiffs' mining engineers testified that the severe drouth of 1930 would be sufficient cause for the springs going dry, and that there was not sufficient water shed to feed the springs in the drouth of 1930. The other mining expert stated that if these springs became dry for the first time in 1930, it might be due to the drouth. We submit that the remarkable coincidence in this case was the failure of the springs, which corresponded exactly with the severe drouths. That it was the most probable cause of the failure to plaintiffs' springs is evidence by plaintiffs' own testimony." Later on in the petition, the following is stated: "In our case the testimony points to the drouth as the proximate cause of the loss of plaintiffs' springs. It was at least equally probable that it was the cause of the failure of plaintiffs' springs, and not the mining of the coal underneath. It is also at least equally probable that the severe blasts the old building received from the winds and storms loosened the shingles on the roof, which is emphasized by the fact that the roof required repairs due to the loosening of the shingles long before the mining and blasting complained of, and it is probable that the shaking of the building by storms caused the cracks complained of in the cellar floor and walls."