Webb v. Bennett's Branch Improvement Co.

Opinion by

Mr. Justice Green,

The damages which are sought to be recovered in this action were suffered long after the death of Charles Webb, and after the title to the lands and mills in question had become vested in the heirs of Zenas M. Webb under the will of Charles Webb. By the terms of the will the fee simple of the land was given to the heirs of Zenas M. Webb, but trustees were appointed “ for said heirs to enter upon the said demised premises to improve upon this said land and protect the premises from the infringement of any person or persons from damming water back on the mills or otherwise and to see the taxes is yearly paid,” etc. Charles Webb died in 1879 and the damages by backing water on the lands, for which the suit is brought, were sustained in the years 1884, 1885, 1886 and 1887. During all these years and at all times after the death of Charles Webb the whole title to the mills and lands devised by the will was vested in the heirs of Zenas M. Webb, and it is very difficult to understand upon what principle the executrix of Charles Webb’s will can make any claim to recover the damages inflicted upon the land during the years stated. She had no title to them of any kind, nor any right to the possession, care or custody of the lands, for any purpose whatever. The possession which the trustees were entitled to take was for the exclusive benefit of the heirs of Zenas M. Webb, and neither the executrix nor any of the other children or devisees of Charles Webb had any interest in the lands devised to these heirs, nor any rights of action growing out of .their ownership. Had the title of the heirs been derived by a deed made in 1879, it would certainly not be pretended that damages sustained years afterwards by the flooding of the land were a part of the assets of Charles Webb’s estate and therefore recoverable by his executrix. Had the damages been sustained prior to his death, but not liquidated until after that event, the question would have been very different, and in that situation the author-ties cited by appellant’s counsel would have been applicable, but they have no relevancy to the present question. The injury was án injury to the land by flooding it with water backed from the defendant’s dam. It was an injury, peculiarly and exclusively, to the enjoyment and occupancy of the land, and of course affected only the persons who were the owners of the land at the time. The legal right, therefore, to have compensation for the injury was vested in the owners by virtue of their title. The circumstance that the right to have damages was affected by a contract made with the defendant by the former owner, does not in the least affect the right of the present owners to have compensation for whatever damages were suffered after his death. There was nothing in the contract or in the will which could operate to sever the right to the damages from the ownership of the lands at the time when the damages were inflicted.

We are clearly of opinion that upon plain and obvious principles this conclusion is correct, but it is also fully sustained by the decision of this court in the case of Horn v. Miller, 136 Pa. 640. In that case, as in this, there had been a prior action by a former owner for withdrawing a portion of the water of a stream by his adjoining owner, and it was followed by a settlement and a written contract between the litigants respecting the manner in which the water might be subsequently used. The action was brought by a subsequent owner who complained of an infraction of the agreement, and a use of the water contrary to its terms. We held that the contract was a covenant running with the land, made for the benefit of the contracting party, as a riparian owner, and that this right passed to the succeeding owners of the title. Mr. Justice Clark, delivering the opinion, said: “ But the right which was thus protected was nevertheless his right as a riparian owner, the extent of which, in view of all the facts and circumstances, was declared and established between the parties, their heirs, executors, administrators and assigns, in the terms of the contract. The right to reasonable use of water in its natural flow, without any diversion of it from its ordinary channel by artificial means, is incidental to tbe ownership of the land through which it flows; and the extent to which it may be used and applied affects the use and consequent value of the land itself. These covenants therefore relate to the land of the respective parties, or to the enjoyment of the land which they had in possession in fee, and were to be performed upon and in connection with its use and enjoyment. The present parties litigant have, in part at least, the same lands respectively to which the agreement relates, also in fee. The covenants were by the covenantors for the mutual benefit of themselves, their heirs, executors, administrators or grantees, and the present owners holding the land by conveyanee from the covenantors respectively, under the law of this state, are in privity of estate with them respectively. ... We are of opinion therefore, that the covenants in question run with the land, and define the rights, not only of the parties thereto, but of their respective heirs and assigns.”

Further discussion seems unnecessary. We are very clearly of opinion that the present plaintiff has no right to maintain an action for the recovery of damages caused by flooding the land devised to the heirs of Zen as M. Webb, and therefore the judgment of the learned court below was correct. If damages are claimed for flooding any other land formerly of Charles Webb, such claim can be considered when a proper case is presented. We know nothing of it here as the plaintiff has not seen fit to print her statement, and even if such claim were here, it could not be combined in the same action with this.

Judgment affirmed.