The opinion of the court was delivered,
by Thompson, C. J.We have given this case, and the manner of its trial, much consideration; and, although the remark seems like anticipating a result, we regard the case as having been carefully, considerately and well tried by the learned judge below. It was the case of a canal boatman, with a boat-load of coal, passing over the Schuylkill Navigation Company’s works from Port Carbon, Schuylkill county, and destined for New York, but prevented from passing out of their works after arriving at Manayunk, on the 10th of August 1869, by reason of the insufficiency of water at Fairmount dam to pass the boats ahead of him over the pool and out of the outlet locks. Pie was detained in the *121canal at Manayunk and in the pool from the 10th day of August until the 7th of September ensuing, with his boat, hands and team, a period of twenty-eight days, for which detention he sued the city, and recovered in this case the sum of $275 damages. The great question of the case was and is, how did the city become liable for these damages to the plaintiff, resulting from a scarcity of water in the navigation company’s works ? To answer this, takes us hack a step to ascertain the relations of the navigation company and the city to each other, and to the public.
The company was incorporated by Act of Assembly of 8th March 1815, with power to construct a slack-water navigation in the river Schuylkill, from a point in Schuylkill county to Philadelphia, including Fairmount dam. This, of course, was to be accomplished by the erection of dams and locks: and the waterpower created by the dams to be erected, was to belong to the company, to use, lease or sell: “ Provided, that it be so done that it shall not at any time impede or interrupt the navigation.” The stream had long previously been declared a public highway; and, as it was the policy of the legislature — as it has ever been — to require all conceded individual rights in navigable streams to he subordinate to the public rights in such streams, this proviso was inserted. Decisions under the Act of 1808, called “ The Mill-dam Act,” are illustrative of this policy: Susq. Canal Co. v. Wright, 9 W. & S. 9; New York and Erie Railroad Co. v. Young, 9 Casey 175.
Under this limitation in the charter, it is apparent the company could make no grant of water-power, to any person or corporation, which would impede or interrupt the navigation of the works to he constructed by them. This was a fundamental condition of the grant by the state, and an implied prohibition of any such thing. In June 1819, the Schuylkill Navigation Company and the city of Philadelphia entered into a contract by which the former acquired a right to increase the supply of water for the use of the city from the Schuylkill river. The city engaged to erect a dam across the river near Fairmount, and to have all the water at said dam which the company should not need for navigation purposes, the company reserving, pursuant to the limitation in its charter, just noticed, the water required for navigation, and the right to draw from the dam as much as it might deem necessary for passing boats and other craft into and out of the pool of the dam through the locks. Then follows a proviso in the grant to the mayor, aldermen and citizens, — “ That they shall not at any time reduce the same, or keep the same reduced, below the level of the surface or top of said dam, — it being the design and meaning of the parties, that the mayor, aldermen and citizens shall only have, such use of the water as, with the use thereof by the *122said president and managers and company, will not reduce it below the said surface or top of the dam, or keep it so reduced.”
It was the theory of the plaintiff’s case, that the city did, in violation of the prohibition in the charter of the navigation company, and of the terms of its own contract, draw from the dam at Eairmount water that was needed for navigation, at the time he was stopped; reducing it below the top of the dam, and thus impeding and obstructing him in the navigation of that highway, and that this occasioned the special damages claimed by him in this suit.
The question whether the facts proved were as assumed, was a question for the jury, and was in various modes explicitly submitted to them by the learned judge below. The law of the case, so far as it holds that where a public nuisance results in a private injury it is the subject of an action by the injured party against the wrongdoer, is undoubted, and was properly so administered on the trial. The following references clearly established this : Mechling v. Kittanning Bridge Co., 1 Grant 416 ; Buck Mountain Coal Co. v. Lehigh Coal and Nav. Co., 14 Wright 91; Hilliard on Torts, Yol. 2, p. 72; Rose v. Miles, 4 M. & S. 101; Greasly v. Codling, 2 Bing. 263; Rex v. Trafford, 1 B. & Ad. 874; State of Pennsylvania v. Wheeling Bridge Co., 18 Howard 518.
Innumerable authorities might be cited to the same effect. The jury found the fact against the defendant, namely, that the city had drawn water from the dam to an extent beyond its contract allowance and obligation, and that this was prejudicial to the navigation, and impeded the plaintiff lawfully navigating it.
Was it proper to submit these questions to the jury ? Beyond a doubt, it was; otherwise the plaintiff’s right to show his injury, and that it was by the act of the city, would be defeated. If the city could be made liable at all for the injury, the plaintiff had a right to show wherein she was wrong. It was very clearly proved that for the purposes of water-power she used about thirteen and a half times more water than for the use of her reservoir, and that the water thus consumed was eight and a half times — and probably eleven times — as much as would have sufficed to pass forty boats a day through Eairmount locks. This was not contradicted, as the city gave no evidence whatever; and this, with other testimony supporting it, was undoubtedly believed by the jury. No water necessary for navigation was allowed by law to be drawn by the company, or authorized by it to be drawn. As the city did draw, how is she to escape liability, if injury resulted on account thereof to a passer on the highway ? She violated the law of the highway by doing so, and we cannot see how she can escape the consequences. It was claimed that it was on the company the liability to the plaintiff ought to rest. But the answer to that argument was truly as stated by the learned judge. It is *123not for the city to say that she had a co-wrongdoer. Torts are not necessarily joint; they are joint and several. One may be answerable for all the wrong done by himself and his co-tortfeasor. The injury cannot be apportioned. The city could not plead ignorance'of the provision in the company’s charter, that water for water-power did not exist when it was wanted for navigation; or her own contract to the same effect, inserted for the purpose of protecting navigation. If she took it when it was so wanted, she violated a regulation of public law, enacted for the benefit of the public, and is amenable, notwithstanding another may have co-operated in doing the act and might also be made answerable.
It wras conceded on the trial, that upon taking water for the citizens of the city for domestic purposes, no restriction could be placed by legislation or grant, and none was placed. If it could have been shown tbat it was this supply for domestic purposes only, which occasioned tbe insufficiency for navigation, then tbe law of a paramount necessity would have existed, and have brought into play tbe doctrine of riparian rights, and justified tbe taking. But this did not appear, and was not tbe fact. Nor was it denied tbat if tbe drouth had been so severe as to have been incapable of mitigation by tbe use of any means to keep tbe navigation open, tbe defendant would not have been liable. The- case would then have been within tbe maxim Actus Dei nemini facit injuriam. But this was found against tbe defendant, and left her without justification and consequent defence. Tbe law as to this was properly administered.
I scarcely feel that I need notice especially tbe answer of tbe court to the defendant’s 4th point, now insisted on as error. The point was to tbe effect, tbat if tbe jury believed that tbe defendant did draw tbe water below tbe comb of the dam at Eairmourxt, and yet find tbat tbe plaintiff’s boat could not have navigated tbe pool, tbe act of the city did not damage tbe plaintiff, and be cannot recover. Tbe answer to tbe point was simply this, tbat an affirmation of tbe point in its terms must be declined; but tbat whether tbe law was as stated, would depend on whether the use by tbe city impeded or interrupted tbe navigation. That covered tbe ground of tbe question. If there was testimony to raise a point of this kind, it was testimony of which tbe jury could make the application, and it was properly for them to do so, and also to say under tbe charge, whether in such a category — viz., tbe inability to navigate tbe pool — tbe party was injured or not. If not injured, it would follow be could not recover. And then, again, it would depend upon tbe time, whether tbe point ought to have been answered as put. If after tbe city bad virtually taken charge of tbe locks, and asserted by its officers a determination to control tbe water at Eairmount, it would have been an idle thing to have navigated tbe pool if be could not get out of tbe *124locks. We think the point was sufficiently answered for the justice of the case and demands of the law.
We shall now notice the assignments of error on the hills of exception by the city to the admissibility of certain items of evidence offered by the plaintiff, and received by the court. They consist of communications, declarations and doings of the city officials, such as mayor, city councils, and chief engineer of the waterworks, in regard to the subject-matter involved in the suit, in connection with the officers of the Schuylkill Navigation Company on the same subject.
It is difficult to find a good reason for rejecting the acts and declarations of a party to a cause, or a duly constituted agent, in the transactions out of which it grows, if relevant for any purpose. The communication of the mayor to the councils of 23d August 1869, was important as part of the res gestae, in the transaction of the mayor, in virtually taking the control of the dam and water for the city. He was the executive officer of the city, its official head; and when he spoke in regard to the condition, wants and responsibilities of the city respecting a competent supply of water, it certainly was evidence against the city, and especially as it was acquiesced in by her. That it was not so acquiesced in, was not shown by the defendant. And when the councils acted, in view of the admitted loss to the company, or loss to boatmen, by appropriating $25,000 to it, for and on account, it must be supposed, of the infringement of its rights and losses consequent thereon, it was evidence of an admission by the legislative branch of the city government of liability, to some extent at least, on account of the matter which brought the injury to the plaintiff. It does not stand on the footing of a compromise. There was no error, we think, in this.
So the correspondence and declarations of Mr. Graeff, chief engineer of the waterworks, must be regarded as made by the city. They directly related to the very matter of the taking the water beyond what was granted to the city, or allowed to be granted by the company. They served to show the foundation of the action of the city in taking the water, and the supposed necessity for the action by the city officers. The city can only speak by the mouths of its agents, and Mr. Graeff was one of them — and an important one — in the matter of water. It was not possible to exclude her acts and declarations. That they were not made to the plaintiff, was of no consequence. If made to those whose acts injured the plaintiff, and were acted on by them, they were their own acts by adoption. They were never repudiated by the city, — at least there is no evidence that they were ever disavowed.
It was a matter proved, and not contradicted, that if the water used for propelling her water-wheels by the city, and permitted to escape through them below the dam, had not been so used, *125there -would have been water enough for the reservoir and navigation both. It was no answer to the plaintiff’s claim, that the city had no other machinery but water-wheels by which to force the water into the reservoir. The answer to that is, that she ought to have had machinery which would have saved this water, seeing that she must have known that water for propulsion was prohibited whenever navigation might be affected by its use for such a purpose. No one can allege a neglect as- an excuse for an injury, any more than can a man his own turpitude for a failure to perform a duty. This view was presented to the jury in the charge of the learned judge, and necessarily became the subject of consideration by the jury in ascertaining the rights of the plaintiff, and of the city to respond in damages.
Of necessity, the letters of the company, in answer to the water department, were admissible. Undoubtedly they might be given in evidence by the plaintiff, although the company was not sued. The result was brought about by the acts of the city and company together. Acting together, the acts and admissions of both were evidence for the injured party. The whole scope of the testimony shows that they acted together in relation to the detention of the water; as between themselves it must be a question of whose was the fault. Not so as to the plaintiff. The whole series of acts and declarations culminating in the detention of the water at Fairmount, so as to prevent plaintiff from getting through with his boat, were res gestee, and proper to be given in evidence.
On the same principle was the admission in evidence of the mayor’s declaration, — that he would resist with the whole police force of the city any attempt by any party to close the head-gates of the waterworks. He was the chief executive officer of the city, and as such made the announcement. The company had a right to close the gates if the navigation required the water. The company was authorized to believe the threat sincere, and was not bound to test it, vi aperta, and take up the gage and try the arbitrament of force. He had a force, to which he referred, sufficient for the carrying into effect the intention avowed. It was, no doubt, — under the state of alarm in the city about a water famine, and the appearance of things, — seriously meant, and doubtless well intended. But, however, as we have already shown and will further show, there was no actual necessity for the detention of the water. Thirteen and a half gallons were required to save one for the city. This went for propelling power. Mr. Trautwine, a civil engineer, estimated, and so testified, that the average consumption for “water-power ” alone at the wheels of the works, was, at the lowest calculation, eight and a half — and perhaps eleven — times sufficient for the passage of forty boats daily at Fairmount. Water-power was forbidden when navigation required it. But, more than this, we regard it as demonstrable, *126by the uncontroverted fact, that a resumption of navigation took place in the Schuylkill on the 7th of September 1869, without any accession to the volume of water in the river from rains, between the date of closing navigation, and that date, a period of twenty-eight days. It must, therefore, have been the act of the city and the company, or one of them, that produced the result, and not an act of Providence as contended for. The jury having found, upon competent evidence, that the plaintiff was injured by being delayed for want of water in navigating his boat, and that the city was at least a party to this result, and was in law without justifying causes to sustain her, a recovery against her seems to have been a necessary consequence of her position and acts under the proof.
We have thus noticed, in á general way, we think, every controverted position in the charge and ruling of the learned-judge as to evidence, and, finding no error in either, the judgment must be affirmed. We regard it as a hard case, but we cannot alter the law to relieve the hardship; nor have we any control over the facts when properly admitted in evidence; they were for the jury.
Judgment affirmed.
Read and Sharswood, JJ., dissented.