The opinion of the court was delivered, July 3d 1867, by
Thompson, J.— Having possessed ourselves, after a careful examination, of the facts and law, of the points of controversy in *359this case, we will discuss them without deeming it beneficial or necessary to notice every point presented in the numerous assignments of error.
1. In the first place, then, was the learned judge right in holding as he did in his general charge, that the plaintiff’s narr. in averring, that until the obstruction to the natural flow of water in the Codorus creek by the defendants, occasioned by the repairing or rebuilding the dam therein mentioned, it had been accustomed to flow through and along the premises of the plaintiff, to be regarded as a material averment, excluding the presumption of any nuisance by reason of the prior dam of the company at the same place ?
The narr. is in the usual form of a narr. in such a case, and by way of inducement avers the right and enjoyment by the plaintiff of the natural flow of the stream through his property, until the same was disturbed by the defendants in the manner set forth. This admitted nothing, and but asserted a right in the usual mode incident to the ownership of real estate on the stream, to its natural flow through it. The plea-of “not guilty” did not necessarily put this portion of the narr. in issue in the first instance at least, any more than it would in slander, the averment that the plaintiff was a good, true and honest citizen. In neither case is the plaintiff bound to prove the averment until an issue is made upon it by the other side. The implication from these words in the narr., drawn by the court, we think was entirely inadmissible. It placed the case before the jury in the attitude of an admission by the plaintiff that no previous obstruction of whatever extent, authorized or unauthorized, to the natural flow of the stream through his premises, was a nuisance or worked harm or injury to him. That being admitted, the defendants would only have to prove that they did no more injury than had been done by somebody else in order to defeat the plaintiff’s right of recovery against them. This might introduce innumerable issues; as many at least as there may or might have been-trespassers on the riparian rights of the plaintiff. The issue tendered by the plaintiff was single; that the defendant had committed the injury complained of, and their answer was, necessarily, not that somebody before them, with whom they may not have connected themselves, had done the same thing, but that they had not, or if they had, they had a right to do it by grant or prescription. In either case, of grant or prescription, it vrould be absolutely necessary that the right should he in themselves and'not in a stranger.
But it seems to me, according to the scope of the implication allowed from the averment in question, the same effect would follow, if a previous nuisance to the plaintiff had been committed even temporarily by a trespasser. The deduction from the fact *360assumed as admitted, went the length of establishing that notwithstanding the original dam may have flooded the plaintiff’s premises, and the authority to maintain it was gone, and the plaintiff’s right to the natural flow of water had revived, yet the plaintiff could not recover for a subsequent injury from the same dam rebuilt without regard to authority, because the admission was that no injury had been occasioned by any previous flooding. By such a rule a single act of trespass would be as efficacious to defeat the plaintiff as a prescriptive right or a grant. No such deduction should have been made from what was but matter of form.
As to the materiality of the matter which may be traversed and matters averred by way of aggravation and inducement, see Steph. on Pleading 241-4. We think the error assigned on this portion of the charge is sustained.
2. The defendant’s case was in proof rested upon a supposed right in them by grant from the Codorus Navigation Company to their ancestor to keep and maintain dam No. 1, as originally erected by the company.
In 1845 the company granted to George Loucks, the father of the defendants, his heirs and assigns for ever, “ the free, full and uninterrupted use of all the water that shall not be wanted to carry on the purposes of said navigation, with the privilege of keeping the canal and dam No. 1, and any other works of the company in good order, as far as may be required for his enjoyment of the sameand with the further privilege granted to the company to enter on all adjacent lands to procure materials for making such repairs.
In 1847 the navigation company ceased to maintain their works as a public highway, and permitted them to go out of repair and to fall into entire disuse. In 1852 they obtained authority from the legislature, on a representation “ that the works had been partially destroyed and rendered useless and unfit for the purposes of transportation, and that the stockholders were not able to put. them into proper repair, or to pay the debts of the company,” to sell them; but this they were not able to do. And we learn from the testimony that at the time of the trial no portion of the works, excepting two or three of the dams, remained in existence ; all else had disappeared.
Claiming under the grant by the company to George Loucks, above referred to, the defendants, in 1856, repaired, or perhaps more accurately speaking, rebuilt what was dam No. 1 of the company, and have since that time maintained and claim to maintain the same by the authority of that grant.
It is insisted by them, that if the company had the right originally to erect the dam by virtue of their chartered privileges, that they are the legal successors of the corporation, and are pos*361sessed of the same rights which it had in virtue of its charter, notwithstanding it had long ago ceased to act under the charter, or do any of the things required of it to be done in regard to the purposes of the corporation. The learned judge was with the defendants on this position, and so charged, adding, “ though I think this is not material in this action; for if they (the defendants) did not swell the water back more than the company had done upon the plaintiffs, they are not responsible in this action; if they did, they are liable, notwithstanding the agreement.”
This was a concession to the defendants of rights not incident to the dam repaired and maintained by them, and as we shall see, not within the power of the grantors of their ancestors to confer. No prescriptive right to maintain the dam existed; It was originally placed in the stream by the company, under the authority of the Commonwealth, and while so maintained it stood upon principles the opposite of those which confer a right by prescription. A prescriptive right has its existence in an uninterrupted user for at least twenty-one years, acquiesced in by the party having the right, and hence after such long acquiescence a grant will be presumed. But acquiescence is not to be presumed against a party who has no choice but to acquiesce, as is the case where private property is taken for public use by authority of the state. A right by prescription never grows up under such circumstances. If the defendants, therefore, had the right to rebuild the dam and flow back the water on the plaintiff’s land, to the same extent the company had previously done, that right must flow from the contract, and the law arising upon it.
It is so well settled by the fundamental law, the constitution, that private property cannot be taken for private use, that it is always assumed as a postulate, and no argument is needed to sustain it. Following this principle to its legitimate results, one of which is that when private property is taken for public use by a corporation invested with the right of eminent domain, if that use ceases it returns or reverts to the owner of the soil from whom it was taken. This is always the case where the right, as in this case, is but an easement, as will be 'seen by the following references, among numerous other authorities, to the same effect: 11 Wright 320, 331; 14 Id. 436; 12 Ohio N. S. 629; 5 Paige 137 ; 9 Barb. 350; 12 Wend. 473; 36 Barb. 162 ; and recently, in Lance v. Harvey, ante, p. 16. Adherence to this rule is the only mode by which a corporation is to be held from diverting its acquisitions obtained in the name of public necessity to private uses, and doing indirectly what cannot be done directly.
The grant under which the defendants claim the right to maintain the dam in its height and efficiency, as it existed when used by the company, fails in effect for two reasons. The first, as already stated, is, that user by the company having ceased, and the *362works being abandoned, the authority of the company over them ceased with the user, and the easement acquired, reverted to the owners of the property from whom taken. The authorities cited prove this-. Secondly, the grant itself being of an incident connected with or arising out of the principal object in granting the charter to the company, must necessarily expire with the principal', and cease when that ceases. In the nature of things, there could be no fee-simple estate in it. The grant might be perpetual if the works continued to be so, but its perpetuity would depend upon that. The company could not be compelled to keep up their works in order to furnish a surplus of water to fill the terms of the grant. This we held in Cass et al. v. Penna. Railroad Co., at the last term of this court at Pittsburg (1 P. F. Smith 351). Such a grant, in its enjoyment, is as permanent only as the creation of which it is an incident, and necessarily as unstable. Like the natural phenomenon of the shadow cast by a substance, it vanishes when the substance disappears.
But it, is said the Act of Assembly authorized a conveyance in fee of the water from the works of the company, and that the grant conforms to the authority of the act. “ To be used,” says the act, in such manner and on such terms as they (the company) may think proper.” If, therefore, the company did not think proper” to maintain a -particular dam, the use of the water by the grantee would, 'on the very terms of the grant, cease. What, therefore, becomes of the fee-simple right in a thing which has in itself ceased to exist ? The supposed answer to that consists in what the defendants claim, namely, to be substituted for the company ; not to furnish a highway for the public —nor to maintain the works for public, but for private use. This encounters the difficulty already referred to, viz., it would sanction the diversion of property, taken in the name of the public for public and general use, to private and individual purposes, which would be as contrary to natural right as to the constitution of the state. It is not possible to entertain the position conceded to the defendants by the court, unless we assume that the franchises of the company passed to- the grantee of the water-right. The com-' pany had no authority to make such a grant. They were simply authorized to sell the surplus water from their “ sluices, canals or other devices,” to be used in such manner and on such terms as they may think proper.” Besides, it is not possible to conceive of the existence of a franchise shorn of the conditions and terms on which it was granted. The defendants, if they can legally set back the water on the, plaintiff’s land by maintaining dam No. 1, must show some authority, in fact or law, not disclosed on the trial below.
The clause in the 24th section of the act incorporating the company, in which it is provided that in case of forfeiture or *363resumption by the legislature of the' rights, privilege's and franchises of the company, the rights of individuals to the waterpower under grants by the company should not be forfeited, does not in the least help thé defendants. When the state forfeits franchises, it does so usually by withdrawing and re-granting them. This differs essentially from the case of usurped franchises. There none having existed, no transfer can take effect. It is not unlikely that if the state had withdrawn or forfeited the rights of the company in the franchises granted them, she could not re-grant them without protecting the rights of the grantees of waterpower,'or compensating them. So if she resumed the works herself. But this would hold as well in favor of a license merely, as a fee-simple estate. This proves nothing in regard to the extent of defendant’s title.
The fact of the abandonment by the corporation of its works was all the plaintiff had to concern himself about in this case. It is that fact which gives rise to the principle that abandoned easements return or revive to the original owners. This position, therefore, does not present the case of a collateral impeachment of the existence of the corporation, as contended for by the defendants in error.
It follows from all this, that the defendants were not justified in their alleged trespass upon-the plaintiff’s possessions by virtue of any authority to erect or repair the dam in such a way as to occasion it. It matters not, in our opinion, whether the dam be maintained by the defendants only at its original height, or higher or lower, under the. authority shown; if it occasion an overflow of water on the land, or into the spring, or tail-race of the plaintiff’s mill, be it ever so little, his rights are invaded so as to entitle him to damages therefor. The defendants possess no immunity, that we can discover, which places them in this instance above the common-law maxim, “ sio utere tuo ut alienum non Icedas.”
In this view of the case it is perhaps not very material to notice the assignment of error upon the rejection of the proposed rebutting evidence of the plaintiff. It is not likely the case will take the same direction on another trial. I may say, however, that the modern rule is against technical objections to testimony. It is true now, as formerly, that if a plaintiff’s ease require testimony in regard to any particular matter, in order to sustain it, and evidence be given, it cannot be accumulated under pretence of rebutting that which the defendant has given, in answer to it. That was hardly what was attempted in the case in hand. It was not material to the plaintiff to show the height of the original dam, No. 1, in chief. 'It was only necessary that he should show himself injured by the obstruction maintained in the.stream by the defendants. He could rest on that until some answer was shown. He did, however, show by one witness, directly examined by him *364to the point, the height of the original dam. This was evidently with a view to answer some collateral matter. It was certainly not essential to his case. But in the defendant’s case, their success depended mainly, as they supposed, at least, on showing that the new dam was no higher than the old, and this brought largely into question its height. Having given much evidence as to that, and that it was so many feet and inches in height, the plaintiff offered to rebut this by the engineer’s bench-marks on the ground and the field-notes of the engineer. Seeing that the defendants claimed under the company, the acts of its agents in erecting or constructing the dam were evidence against them. It is true, this is not likely to appear in the same shape again ; and although it is not necessary to say we reverse for this reason, yet we think the court should not have excluded the plaintiff’s rebutting evidence.
No doubt but the height of the old dam, as a water-mark, may again become material; and if so, while a portion of the offered testimony might not be evidence in the changed aspect of the case, such as the engineer’s field-notes, yet all the work on the ground going to establish its height would be evidence. But we will not in advance lay down any rule on this point. As the ease must be tried on different principles, if tried again, from those assumed on the last trial, we think we need not notice the many other assignments of error, in some of which there may have been error in the aspect in which the case was presented, but in most of which we see nothing wrong. On the question of back-water, and whether it exists or not, there is usually much diversity in the testimony, and generally great liberality in admitting whatever will shed light on the subject. No doubt this course will be pursued as far as consistent with the rules of evidence on another trial. It will be our duty to say whether or not it has been so done, if we are again called on to review the case.
Judgment reversed, and venire de novo awarded.