Spigelmoyer v. Walter
Supreme Court of Pennsylvania
ERROR to the Common Pleas of Union county. This was an action of trespass vi et armis, by Simon Walter against Daniel Spigelmoyer, Jacob Fees and Elias Fees, in which the plaintiff thus laid his cause of action: “ And whereupon the said Simon, by Isaac Slenker, his attorney, complains that the said Daniel, Elias and Jacob, on the 1st day of April 1838, with force and arms, &c., the close of the said Simon, in the county aforesaid, did break and enter the mill-dam of the said…
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ERROR to the Common Pleas of Union county. This was an action of trespass vi et armis, by Simon Walter against Daniel Spigelmoyer, Jacob Fees and Elias Fees, in which the plaintiff thus laid his cause of action: “ And whereupon the said Simon, by Isaac Slenker, his attorney, complains that the said Daniel, Elias and Jacob, on the 1st day of April 1838, with force and arms, &c., the close of the said Simon, in the county aforesaid, did break and enter the mill-dam of the said Simon, then and there did cut, break and tear down, contrary to law, so that the said Simon was put to great expense,…
1Opinion of the Court
The opinion of the Court was delivered by •
Sergeant, J.
The case of Criswell v. Clugh, (3 Watts 330), decides the point made in the defendants’ justification. It was there held, that the party must pursue the remedies pointed out by the Act of Assembly, and could not use the common law remedy of abatement. It is argued that this case is distinguishable, because the defence here is not put on the claim of a right to abate *542the dam entirely, but only to remove so much of the obstruction as to permit arks to pass, doing as little damage as possible. It is almost impossible for a person to cut away…
2Cases cited2 opinions
- Dyer v. DepuiSupreme Court of Pennsylvania · 1840
- Criswell v. ClughSupreme Court of Pennsylvania · 1834
3Cited by2 opinions
- White v. Conestoga Title InsuranceSupreme Court of Pennsylvania · 2012
- Martachowski v. OrawitzSuperior Court of Pennsylvania · 1900