Mertz v. Dorney
Supreme Court of Pennsylvania
Error to the Common Pleas of Lehigh county. This was an action on the case brought by Solomon Dorney against Charles Mertz, for flooding the water back on the plaintiff’s land. Dorney is the owner of a tract of land in South ‘ Whitehall township, Lehigh county, lying on Cedar Creek; and the defendant owns a tract of 23 acres adjoining the plaintiff below, on which are erected a grist-mill and the dam in question. Both parties traced their titles back for many years.
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Error to the Common Pleas of Lehigh county. This was an action on the case brought by Solomon Dorney against Charles Mertz, for flooding the water back on the plaintiff’s land. Dorney is the owner of a tract of land in South ‘ Whitehall township, Lehigh county, lying on Cedar Creek; and the defendant owns a tract of 23 acres adjoining the plaintiff below, on which are erected a grist-mill and the dam in question. Both parties traced their titles back for many years. The mill and dam were first built more than seventy-five years ago, and came into the possession of the defendant but a few…
1Opinion of the Court
The opinion of the Court was delivered by
Knox, J. —
We see no error in the charge. The presumption of grant arising upon the lapse of time applied to the land actually flooded, and not to the height of the dam. If therefore the plaintiff ’s land was flooded by means of the repairs to the dam to a greater extent than it had been for a period of twenty-one years, the defendant was liable for the injury, although the height of the dam may not have been increased.
The points submitted by the defendant below and plaintiff in error were all substantially answered, and with legal accuracy.
Judgment…
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