
    Langan v. Punxsutawney Borough, Appellant.
    
      Constitutional law — Title of statute — Mesne profits — Act of May 2, 1876, P. L. 96.
    
    The Act of May 2,1876, P. L. 95, entitled “ An Act relating to damages and mesne profits ” does not violate art. Ill, sec. 3, of the constitution of Pennsylvania, which requires that an act shall contain not more than one subject which shall be clearly expressed in the title.
    Argued May 6, 1912.
    Appeal, No. 129, April T., 1912, by defendant, from judgment of C. P. Jefferson Co., Nov. T., 1907, No. 107, on verdict for plaintiff in case of J. S. Langan v. Punxsutawney Borough.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head and Porter, JJ.
    Affirmed.
    Trespass to recover damages for alleged flooding of premises from a sewer.
    At the trial the jury returned a verdict for $100 for plaintiff on which judgment was entered.
    On a motion for a new trial Reed, P. J., filed the following opinion:
    Upon notice served on the defendant under the Act of May 2, 1876, P. L. 95, the plaintiff was permitted to give evidence of his alleged damages down to the time of the trial. The admission of this testimony was objected to on the ground that the act of 1876 was unconstitutional, and this is now urged as a reason for the granting of a new trial. The complaint made is that the title of the act does not clearly express the subject of the enactment. The title reads as follows: “An act relating to damages and mesne profits;” and the act itself provides that in all actions then pending or thereafter brought for the recovery of damages or mesne profits it shall be lawful for the plaintiff to give notice not less than fifteen days before the trial of his purpose to claim damages or mesne profits up to the date of the trial not barred by the statute of limitations as may be warranted by law and the evidence. The- object of the act is manifest, namely, to obviate the necessity of multiplied actions in cases of continuing trespass: and I think the title sufficiently expresses this object. The contention that the act changes the rules of evidence is a mistaken view of it. The only thing that the act does is to change the practice, or rather to provide a way whereby the bar to a recovery of damages or mesne profits for a continuing trespass between the date of bringing the action and the date of its trial may be removed. It is more than thirty-five years now since the act was passed, and this is the first time its constitutionality has been called in question so far as I am advised. It has been considered in a number of cases before the appellate courts, and in none of them is there an intimation that it is unconstitutional. It was considered by the Supreme Court in 1886, in the case of Humphrey v. Irvin, 18 W. N. C. 449, again, in 1896, in Hileman v. Hileman, 172 Pa. 323; again, in 1902, in Pan-tall v. Rochester & Pittsburg Coal & Iron Co., 204 Pa. 158; again, in 1903, in Lynch v. Troxell, 207 Pa. 162; and by the Superior Court in 1902 in Tustin v. Sammons, 23 Pa. Superior Ct. 175. These facts are not conclusive on the question of the constitutionality of the act: but this court, in view of the lapse of time and the fact that the act has been repeatedly considered and given effect by the Supreme and Superior Courts, would not declare it unconstitutional in the absence of an abiding conviction that it could not be sustained, which conviction I do not entertain.
    It may be said in passing that in my opinion the verdict indicates that the defendant did not suffer any harm by the admission of testimony as to damages sustained after suit brought, although such testimony was properly admitted under the notice given by virtue of the act of 1876. It is true there was some confusion in the plaintiff’s testimony as to the time he changed his sewer connection from the Farmers’ alley sewer line to the Findley street sewer line, but I think the jury was warranted in finding that the change was made prior to 1904. It appears from the testimony that the plaintiff in 1904 and 1905 made abatements in rent to his tenants of between $50.00 and $60.00 on account of the flooding of his basement, which it was alleged resulted from the clogging of the Findley street sewer and the backing of the sewage, by reason thereof, up the plaintiff’s private sewer line into the basement of his building. There was testimony to the effect that when the Findley street sewer was cleaned out the water and sewage in the basement of the plaintiff’s building immediately subsided. The testimony was quite convincing that the defendant borough since about the time this action was brought has been exercising due diligence in keeping sewer lines involved in this case in good condition, and I am persuaded from the testimony in the case and the amount of the verdict that the damages allowed by the jury were for damages that had accrued prior to 1907. As I view the entire testimony it was sufficient to sustain a verdict either for the plaintiff or the defendant and was of such conflicting character as to necessarily require the submission of the case to the jury. I am unable to say that the jury was so clearly and palpably mistaken in the verdict rendered that it ought to be set aside, nor am I convinced that another trial would result in a different verdict or in one any more favorable to the defendant. Since the testimony requires the submission of the case to the jury and is ample to sustain a verdict for the plaintiff, in my opinion the present verdict should not be disturbed.
    And now, September 23, 1911, motion for new trial refused.
    
      Errors assigned were various rulings and instructions involving the constitutionality of the Act of May 2, 1876, P. L. 95.
    
      
      W. M. Gillespie, with him Edward A. Car malt, for appellant.
    
      H. C. Campbell, with him C. Z. Gordon, for appellee.
    October 14, 1912:
   Opinion by

Head, J.,

The chief error assigned in this case is the refusal of the learned court below to declare unconstitutional the Act of May 2, 1876, P. L. 95. The attack upon this statute rests on the now familiar ground that the act contains more than one subject and that its title is not sufficiently comprehensive to meet the constitutional requirement on that subject. It would be a useless parade of learning to here cite the long line of cases in which the appellate courts have correctly defined their attitude in such a case. The statute is as widely known to the profession as any legislation enacted for many years. It contains but one section of less than ten lines. Its single purpose was to permit a plaintiff, in the actions referred to, to recover in one verdict the damages he could show he had sustained down to the time the verdict was rendered. Before its enactment, owing to the ancient legal fiction that every action was tried as of the day of the impetration of the writ, this could not have been done, and two actions with their consequent expense, annoyance and delay, would have been necessary. Notwithstanding the elaborate and learned argument made by the able counsel for the appellant, we cannot adopt the conclusion he urges upon us. We are satisfied too that the opinion filed by the learned judge below, refusing a new trial on the ground indicated, sets forth with sufficient clearness and force the reasons which show that the statute cannot be successfully attacked on either of the grounds indicated. We therefore hold that the act in question is a constitutional piece of legislation and that the learned trial court was right in receiving, over the objection of the defendant, the evidence which it authorizes. The assignments of error are overruled.

Judgment affirmed.  