The opinion of the court was delivered, July 3d 1872, by
Williams, J.It is conceded that the company is not responsible in a common-law action, for direct or remote injuries arising' from the construction of dams, locks and other devices which, by the act of incorporation and its supplements, it is authorized to make for the improvement of the navigation of the river. The charter provides a mode for the redress of all such injuries, which must be strictly pursued. Under the powers which it confers, the company has the right not only to construct dams, but to increase their height, when necessary, for the improvement of the naviga*167ble highway; and it mpy do this by means of “ strips or splash-boards,” as well as by more permanent structures. The plaintiff then has no remedy in this form of action for the injury complained of, if it was occasioned by the lawful and proper exercise of the powers conferred on the company, in order to enable it “to make a complete slack-water navigation.” But the remedies against the company, provided by the act of incorporation, for injuries occasioned by the construction of its works, do not exclude the common-law remedies for injuries arising from the abuse of its privileges, or from the neglect of its duties; and if the injury in this case arose from the negligence of the company in suffering the pool of the dam to be filled with sand, coal-dirt, &c., as alleged in the second and third counts of the declaration, then the plaintiff may maintain this action and recover the damages he has sustained by such neglect of duty. But, unhappily for the plaintiff, there is no evidence that the injury to his land was occasioned by the deposits of sand, coal-dirt, and other debris in the pool of the dam, as averred in the declaration. On the contrary, the plaintiff, who was examined as a witness in his own behalf, said : “ The back flow of the water, occasioned by putting on the strips, is what I complain of as injuring my property.” But under the powers conferred by its charter the company had the right, as already suggested, to put the strips on the dam for the purpose of increasing its height, if necessary, in order to render the river navigable; and if the plaintiff’s land was injured by the back flow of the water occasioned thereby, his only remedy for the injury is the statutory one provided by the charter. But it is strenuously contended that the company is liable in this form of action for the injury caused by the use of the strips'or splash-boards, because there would have been no necessity or occasion to increase the height of the dam if the company had not been guilty of negligence in suffering the pool to be filled with the deposits of sand and coal-dirt. The court below seems to have thought, that if the company was obliged to raise the dam in consequence of negligently suffering the pool to be filled with the debris brought down by the current, this action could not be maintained, because the negligence in suffering the pool to be filled up was too remote a cause of the injury to furnish any ground of action. But without deciding this question, we are clearly of the opinion that there was no sufficient evidence of any such negligence on the part of the company as would justify the jury in finding that it had exceeded the powers, or abused the privileges conferred by its charter, in making use of the strips or splash-boards to increase the height of the dam in order to render the river navigable when the water is low — and if not, then it is clear that this action will not lie. The evidence shows that sand, coal-dirt and other debris, in greater or less quantities, are brought down and deposited in *168the pool when the river is high; and that the company employs five dredging-machines, worked by forty of fifty men, which are used every spring before the opening of navigation, and kept ready for use at all times when necessary, for the purpose of keeping the channel open and the pools clear of the obstructions arising from these deposits. In no single instance has it been shown that the company was guilty of negligence in not removing the obstructions as soon as it was reasonably practicable. The mere fact that deposits of dirt are continually made when the river is high, and that they have increased to such an extent within the last ten or fifteen years as to render an increase of the height of the dam necessary for the safe and convenient navigation of the river when the water is low, constitutes no such evidence of negligence in keeping the channel clear as would warrant the jury in finding that the company had abused its powers in making use of the strips or splash-boards for the purpose of raising the dam. Where the injury arises from an act which is authorized by the charter, if necessary to accomplish the purpose for which it was granted, no common-law action can be maintained for its redress, unless it is clearly shown that the necessity for such act was superinduced by the gross negligence of the company, even if such negligence can be regarded as a sufficiently proximate cause of the injury to furnish a ground of action. But if the evidence had shown that the plaintiff’s land was injured by the defendant’s negligence in suffering the sand and coal-dirt to accumulate in the pool and thereby to raise the water so as to overflow the land, as alleged in the declaration, then the plaintiff would have had the right to maintain the action, and so the court in effect charged the jury. In answering the plaintiff’s second point the court said: “ It is the duty of the canal company to keep its dams and canal clear of dirt and debris as far as practicable, and if through neglect so to do the land of the plaintiff was overflowed and injured the company would be responsible therefor. But it must appear from the evidence that plaintiff’s land was injured from that cause.” Though this answer is assigned as error, we see nothing in it of which the plaintiff has any reason to complain ; and, as will be seen from what we have already said, we entirely concur with the learned judge in saying that if it was found impossible to keep the debris out of the defendant’s dam, it had a right to increase permanently or temporarily the height thereof, so as to keep open the navigation at all times as it was required to do by its charter. But if by reason of matters entirely beyond the defendant’s control, the dam filled up with debris which could not be removed so quickly after the numerous freshets as to keep the navigation in order,.it had the right to raise its dam permanently or temporarily to meet the exigency. It could not from mere motives of economy, unless the increased *169expense was unreasonable. If great and excessive and unreasonable, it might raise the dam, and thereby occupy an additional portion of the public domain, paying damages, under its charter, to all persons injured in their property or rights. We regard this instruction as a correct exposition of the rights and obligations of the company, under its charter, as applicable to the circumstances of this case. There is a wide difference between the present case and that of The Schuylkill Navigation Company v. McDonough, 9 Casey 73, upon which the plaintiff relies in support of this action. There the company had abandoned the use of the pool above the dam, and suffered it to be filled up with coal-dirt, &c., which raised the water of the Schuylkill river and of Mill creek so that it flowed into the cellar of the plaintiff below, rendering it wet and unwholesome. As the company had no right to convert the pool into a mere receptacle of the dirt washed down from the collieries above to the injury of the riparian inhabitants, it was clearly guilty of negligence in not removing it. But here there is no evidence that the injury complained of was caused by the defendant’s negligence. The use of the pool was not abandoned by the company, nor was it suffered to be filled up with dirt so as to raise the water of the river and cause it to overflow the plaintiff’s land. If his land was overflowed, it was the direct result of the defendant’s act in raising the dam. As the company had the undoubted right to raise the dam for the purpose of rendering the river navigable, the remedy provided by the charter is the only legal and proper one for the injury occasioned thereby, and as the case was tried on this principle the judgment must be affirmed.
Judgment affirmed.