Appeal from judgment of Court of Common Pleas of Allegheny County, July T., 1963, No. 802, in case of Joseph Bodick v. Harcliff Mining Company.
Michael J. Boyle, with him Alexander Unkovic, and Meyer, Unkovic & Scott, for appellant.
John J. Kennedy, Jr., with him Evans, Ivory & Evans, for appellee.
Ervin, P. J., Wright, Montgomery, Jacobs, Hoffman, and Spaulding, JJ. (Watkins, J., absent). Opinion by Spaulding, J.
[ 208 Pa. Super. Page 472]
This appeal is from the refusal of motions for a judgment n.o.v. and a new trial in a trespass action quare clausum fregit brought by the plaintiff to recover for damage to his house located near the Allegheny River in Perry Township, Armstrong County. Plaintiff alleged that debris from defendant's strip mine, located approximately one-half mile downstream, interfered with the normal flow of the river causing an ice jam, unusually high flood waters, and damage to his home.
The jury returned a verdict for plaintiff-appellee in the amount of $8500.
[ 208 Pa. Super. Page 473]
Appellee's house is located on the right bank approximately 300 feet from the river's edge. The appellant operates a strip mine on the same side of the river directly opposite a small island known as Black Fox Island. This island is located considerably closer to the left bank so that normally the main flow of the river is between the island and the right bank.
In 1957, appellant constructed a high wall of spoil, consisting of clay and shale, along the hillside overlooking Black Fox Island. During the spring and summer of 1958, the spoil slid down the hillside into the river channel between the island and the right river bank. The channel was between 200 and 250 feet wide at this point and the material extended midway into it.
The Allegheny River annually freezes in December and thaws in January or February. On January 22, 1959 about 11:00 a.m., the ice began to thaw, break up, and move down the river. According to the appellee, ice started jamming and piling up most heavily at the point opposite the mine where spoil was obstructing the free flow of the channel to the right of Black Fox Island. The water and ice reached its height about midnight when it came into appellee's house at a level of 11 feet above the first floor.
Mr. George Westerman, owner of a cottage about one-fourth of a mile below the appellee's house, also observed the spoil material obstructing the water's flow through the channel opposite the island. His cottage, approximately 250 feet from the right bank, was similarly damaged. He testified that the water and ice reached a level of 15 to 20 feet higher in areas above the obstruction ...