
    The President, Managers and Company of the Schuylkill Navigation Company against Thoburn.
    In Error.
    
      Monday, December 17.
    ERROR to the Court of Common Pleas of Montgo- . mery county. . .
    . ,, ,■ 1 , , This was originally a proceeding under the 10th and 11th sections of the .Act of 8th March, 181-5, entitled an Act to authorise the Governor to incorporate a company to make a , . , . rr 7 .7 • 77 • • 1 1 -V I lock navigation on the river Schuylkill, instituted by John Thohurn, the plaintiff below, against the President, Managers -and Company of the Schuylkill Navigation Company. It commenced by the petition of the plaintiff to the Court Below stating, that the petitioner was the owner of a certain tract of land, bounding on the river Schuylkill, containing seventy one acres or thereabouts, together with a certain cotton factory, and water works, erected on a certain stream called Mill Creeks near the mouth thereof, in the said county ; and that the President, Managers and Company of the Schuylkill Navigation Company, had erected a dam upon the said 1 , , , f . . , r . , river, so that the land or the petitioner, about ten acres of, had been inundated by the swelling of. the. water, in c°n-sequence of the erecting said dam, and the factory and water ^ , . ° . . , , ’ . . works of the petitioner were injured, by swelling the into the tail race of said factory and \yater works, which had been erected on said Mill, Creek, emptying into said river Schuylkill. That the petitioner had sustained very rabie damages therefrom. And that the said President, Managers and Company could not agree with the petitioner on the compensation to be paid lor such injury, nor upon the He directed to the Sheriff, to summon a jury of disinterested men, in order to ascertain and, report to the Court what damage had been 1 ° appointment of suitable persons to ascertain the same, thereupon prayed the Court to award a venire, 
      sustained by the petitioner, agreeably to the provisions of (.[jg Act of Assembly.
    
      
      - a writ of error lies to the judgment Of tlufCourt of Common pieason the Jiu'y'rendered on appeal from an mquisiUonfinding a”""of March, 8th ceedingsm’ ing to the common law.
    . Under the March, 1815, ¡^^ownm”1 within the meanmgofthe so as to be “"e fo^the damages for injury to the the ™°'nlftafneteSr. fere before ií' in and claim by motion to the money out of Court,
    ¡ng'the'da-^ o>ages)the jury are to value the injury to the property at the time the injury was suffered, without reference to the person of the owner or the state of his business : and the measure of such damage is the difference between what the .property would have sold for as affected by the injury, and what it would have brought unaffected by such injury. .....■■■■
    
      A venire was thereupon awarded by the Court with notice to the defendants, and a jury met, and reported the damages at 13,250 dollars. From this report the defendants appealed within the thirty days, allowed by the Act, and a statement was filed, setting forth the principal facts containing in the petition, and laying the damages at 19,000 dollars. The defendants pleaded, that they had not committed the damage complained of, and issue was joined, and the cause went to trial.
    It appeared that the plaintiff was the owner of seventy-one acres of land in Lower Merion township, Montgomery county, of which ten acres were meadow. He had'erected a cotton factory with machinery, on the land, at the mouth of Mill Creek, (which empties into the Schuylkill,) at a place where there had been originally a saw mill, and had there carried on the business of spinning cotton yarn. In consequence of the dam across the Schuylkill at Flat Rock, erected by the defendants in the year 1818, for the improvement of the navigation of the river, the water of the river was flowed back on the wheel and works of the plaintiff’s factory, so as nearly to destroy the water power, and to oblige him to discontinue the business there altogether, and remove the machinery to another mill. The meadow was also in a great measure overflowed and its value deteriorated, and the machinery was injured. The property of the land and saw-mill, originally belonged to Conrad Krickbaum from whom it was purchased by the plaintiff John Thoburn, James Thoburn and James Wood, in April, 1814. In April, 1816, James Thoburn and James Wood conveyed their shares of the premises to the plaintiff. When the land was conveyed by Krickbuum.to John Thoburn, James Thoburn and James Wood, they gave him a mortgage for 10,000 dollars, payable in ten equal annual instalments, with interest,’of which, at the time of trial, 2000 dollars had been paid. In June, 1819, (after the commencement of these proceedings,) John Thoburn mortgaged the property to John Stoddart, to secure the payment of 5000 dollars, payable on demand; and this mortgage was assigned by Stoddart, in October, 1819, to the Bank of Pennsylvania.
    
      On the trial, the following points were made, and the opinlan-of-the Court requested to the jury.
    1. That the damages must; be taken with reference to. the value of the, property, at the time when the injury was
    ■ 2.' That the injury done to his property, is the only injury the jury are to estimate, and not any injury which the Plain* tiff has sustained in his business, by means of the dam of the defendants. "
    3. That the mortgage of the first of April, 1814, of John Thoburn, James Thoburn, and James Wood, -to Conrad Krickbaum, for the payment of 10,000 dollars, in ten equal annual instalments, with, interest, on which 2,000 dollars, had been paidi and the mortgage of the 17th of June, 1819, of John Thobiirn to John Stoddart for 5,000 dollars, payable on. demand, were sufficient to prevent the plaintiffs recovery of damages ; or that .the interest of the morgagees should be deducted from the damages done to. the property. • ■
    To the first question the Court answered and so instructed the jury, that though the plaintiff’s property destroyed, may have cost him, when he purchased or erected the buildings damaged by the defendants’ dam, double the value of them at the time'of the injury to them, or destruction of them by the defendants, yet the value of them, so far as injured by the defendants at the time the injury was done, is the value of the injury sustained by the plaintiff,-for which he is entitled to recover damages, be they more or less than the actual •cost to the plaintiff. In other words, the damages must- be assessed with reference to the value of the property, at the time the damage was done, and the jury, in estimating damages, must take into their consideration the advantages, if any, which may be derived to the plaintiff by the navigation.
    To the second question the Court answered and instructed the jury, that if the plaintiff has been injured by means of any dam or dams'erected by the defendants, or'if the land of the plaintiff has been inundated by the swelling of the water, in consequence of the erecting of any dam or dams by the defendants; or any mill or other water work of the plaintiff, has been injured by swelling the water by the defendants, into the tail race of any mill or other water works which may have been erected in said river, or on any stream of water entering into the same, he is entitled to damage for each and every injury which may have been so-sustained or suffered by him, by means of such' dam or dams. ,,
    The injury the plaintiff has actually sustained by means of the defendants’, dam or dams,.is to be the measure, of your damages ; but he can recover nothing, for fanciful or imaginary injuries, or for injuries done to' his feelings. As, for instance, suppose the plaintiff had a valuable spring' and spring-house, which rendered his farm more valuable, which had been overflowed-and destroyed by the defendants’ dam, he would'be entitled to recover, damages for the injury done thereby to them, and whole farm, if any, and nothing more. Suppose a handsome grove of trees had been destroyed by the defendants’ dam, he would be entitled to recover damages for the actual value thereof, but could recover nothing.in addition for the imaginary value he set upon it, because it was inestimably dear to him as having been planted by his deceased father, or because, in that grove, he had formed, those tender attachments, which had united him to his partner for life. ' , .
    To the third question the Court answered, that the mortgagees are not parties to this suit. There is ño evidence of their having made any demands for damages, or set up any claims against the defendants for any injury done them,- or either of them, by means of the dam. The mortgage to John Stoddart was given after this suit was instituted, and the damage complained of accrued. . Under those circumstances, the Court think you should ascertain the damage the plaintiff has sustained, and no other, without any-reference to the- effect your verdict may produce on'the mortgagees. What claims, or whether any,, the mortgagees may hereafter make, to any portion of the damages you may find, if any the plaintiff has suffered, is not now a question to be taken into consideration by the jury.
    To these instructions the defendant excepted.
    The jury found a verdict for the plaintiff for 14,650 dollars, damages, on which judgment was entered.
    
      Kittera, for the defendant in error,
    now moved to quash the writ of error: contending that the proceedings were not the subject of a w'fit of error. The Act of the 8th of March,' 1815, sec. 2, provides for an appeal by either'party from the report of the jury, “in the same manner as appeals are al- , , J „ ,n, • c . , ,- lowed in other cases.” This rerers to the party's taking an oath, and entering into recognisance, as directed by the arbitration law of the 20th of March, 1810, sec. 4. Purd. Dig. 356. But the proceedings to ..obtain damages are not proceedings according to the course of the common lawj but a special course by petition ; and as the Act contemplates no farther proceedings, the jurisdiction of the Common Pleas, on the appeal, is final. Where an appellate jurisdiction is intended to be given to the Supreme Court,' it is expressly given : as in the intestate Act of 19th of April, 1794,. allowing an appeal from the Register’s Court to the Supreme Court, in certain cases. Purd. Dig. 295. ' So the Act of the 27th of March, 1713, gives an appeal from the Orphans’ Court to the Supreme Court; Purd. Dig. 463. The general rule is, that where a new jurisdiction is created, whose procedings áre according to the common law, a writ of error lies: otherwise not. 2 Bac. Ab. 456. 8 Mass.-Rep. 305. Ona libel for a divorce, an appeal lies, and not a writ of error. Miller v. Miller, 3 Binn. 30. A writ of error does not lie to the judgment of the Quarter Sessions, upon an appeal by the supervisor of roads, from a summary conviction by a justice of the peace : and the reason given is, that it did not appear to be a preceding, according to the course of the common law. And yet, in this'case, the trial in the .Quarter Sessions was by a jury. Ruhlman v. The Commonwealth, 5 Binn. 24.
    
      Broome arid J. Sergeant, contra.
    This Court will not look farther back than the procedingsin the Common Pleas, and there they are according tó the course of the common layr. It is the same case, with appeals from the awards of arbitrators, which, in the Common Pleas are carried on according, to the course of the common law, and error lies. So on appeals from justices except in certain cases, such as concern roads, paupers, ¡kc., where from the nature of the case, the procedings can not be according to the course of the common law: and these must be removed by certiorari. In the case of the Ship Portland, 2 Serg. Razóle, 197, on an attachment against a vessel, a writ of error lay. So in an issue of devisavit vel non, directed by the Register’s Court, error lies. Vansant v. Boileau. 1 Binn, 444. A writ of error lies from the judgment of the Common Pleas dismissing an appeal. Commonwealth v. The Judges of the Common Pleas. 3 Binn. 273. In a case that was decided at Lancaster, in May, 1818, Moor v. Albright, this question was, in effect, decided: for it was held by this Court, that procedings in the Common Pleas; on an appeal from the Board of Property, are the subject of a writ of error.
    
      Kittera, in reply.
    The cases cited on the other side differ from this. In the case of the Ship Portland, the attachment act ordered a trial by jury. A feigned issue to try a will, is, in form, an action at common law. In Moor v. Albright, the Act of Assembly authorised the Court to mould the proceedings as they pleased.
    The Court, having heard the argument, directed the counsel to proceed in the argument on the merits: after which, their opinion would be given on the whole.
    
      Broome and J. Sergeant,
    
    for the plaintiffs in error, now proceed to argue upon the errors assigned.
    1. The plaintiff below was not the person entitled to compensation, because he had mortgaged the property: yet the Court charged, that the compensation was to be made to him. The Act gives the damages to the “ owner or owners.” The mortgagees should be considered the owners : the damages are the full value of the property: the whole water power was rendered useless. It was no longer a security to the mortgagees, who had the legal estate.
    2. The Court gave no answer to the second point proposed by the defendants for their opinion : that is, they gave in substance no answer.
    
      Kittera, contra.
    This Act contains a provision, enabling the company to take the property of individuals, before they pay for it. The construction ought, on this account, to be liberal in favour of the owner. The objections, now made to the capacity Qf the plaintifF to recover, ought to have been taken advantage of, by pleading that all the owners had not' joined in the tition.
    It is objected,
    1. That the mortgagor could not recover at all, or that the interest of the mortgagees' should be deducted from the damages. If the mortgagees lay any claim, they ought to have come into Court, and alleged it.. But, in truth, the mortgagees wish the proceedings to be confirmed, and are willing to enter a release on the1 record. The plaintiff could not compel the mortgagees to join : nor if they had, could the jury divide the damages; there can be but one valuation.' • But; after the finding of the jury, the fund is in the power of the Court, and they may order distribution to the parties entitled. There have been many proceedings in analogous cases, under the road laws, but when did the mortgagees ever become parties to such proceedings? It does not appear that the mortgagees will be injured.
    2. The measure of the damages is objected to: and it is said, that the Court did not answer the question on that .subject. But, we contend, that the Court have expressly answered it. They told the jury, they were to consider the injury actually sustained by the plaintiff, and that was the measure of damages. On this, point, he cited Vanhorne’s Lessee v. Dorrance, 2 Dali. 304,
    
      Reply.
    
    Our bill of rights and Constitution authorise the.táking of private property for public use, making compensation. This navigation is an object of great public importance.
    1. As to the rights of the mortgagees. There was diie on Krickbaunds mortgage, 8000 dollars: on Stoddards mortgage, (given after the damage sustained,) 5000 dollars. We contend, that these mortgagees ought to have been the petitioners, or, if not, that a deduction should have been made to the amount of their interest, in order to protect us from their claims. The proceeding under the Act brings the title into question, incidentally. No one, but the owner, has a right to the damages, and the defendants may shew, that the plaintiff is not the owner. Suppose there were a leaseholder, would he not be entitled to a portion of the damages; as owner to a certain extent ? Suppose the whole value of the land, destroyed by the backwater, when the premises had been mortgaged to their full value, who would be the injured person ? The mortgagee, after default, is the legal owner. He may support an ejectment, and have a Writ of estrepement. The mortgagor has no equity till the debt is paid. As to the release, it is too late now for the mortgagees to offer a release.
    2. The Court was requested to charge, that damages were not to be given on account of the plaintiff’s loss of business; but they did not charge on that point. This was. a point of great importance to the company, as evidence had been given of the profits of the plaintiff’s business, or rather of the profits of cotton spinning in general, which, one witness (Mr. Siddall,)-represented as being very considerable. By. the illustration given by the President of the Court, they, might consider every thing as matter of damages, except what was purely matter of fancy or feeling. Now the real damage was the diminution in the value of the property : the difference in'its value occasioned by the dam: and this would be proved by the price it would bring. The particular value, to the individual who owned' the property, is not the standard. We do not deny, that the injury to the machinery was a fair subject for the jury’s consideration. . '
   The opinion of the Court was delivered by

Gibson J.

The motion-to quash the writ of error must be refused. The Act authorised an appeal to a common law jurisdiction; and where that is the case, if there be no particular mode of proceeding pointed out, the proceedings are understood to be according to the course of the common law. Here they are actually so. An issue of fact was formed, and submitted to a jury, who gave a verdict, on which judgment was rendered, and.it is therefore impossible to say the proceedings are not the subject of a writ of error. The judgment of a Court of Common Pleas, on a certiorari to remove the proceedings of justices under the Landlord and Tenant Act, or the Act to give pósséssion to purchasers at Sheriff’s sale, may be reversed on error brought to the Supreme Court : yet the proceedings were not at first according to the common law. I proceed therefore to consider the errors assigned.

The first is an exception to the charge of the Court; who were .requested to instruct the jury that the mortgage executed by the plaintiff below, together with James Thoburn, and Wood, to Krickbaum, (only part of which was paid,) and the mortgage, executed by the plaintiff alone, to Stoddart, and by the latter assigned to the Bank of Pennsylvania, precluded "the plaintiff from recovering damagesor at most, only as far as the damages actually sustained, should exceed the amount due on these mortgages, which, it was contended, should be deducted and reserved to answer the claims of the mortgagees, who were to be considered as the legal, and to the amount of their interest, the equitable owners of the land. Formerly the law was so. . The possession of the tenant in mortgage was viewed';.at law, as that of a tenant at sufferance, with perhaps a slight shade or two of difference. I am not aware however that' this view was. ever entertained in Pennsylvania: unquestionably it has not been since the passing, of the Act of 1705, which authorises the mortgagee to proceed, by scire facias, against the land and have it sold ; but the mortgagor has, as in equity, been treated as the real owner to all intents, as respects third persons : and, even as to the mortgagee, the debt has been considered the principal, and the land only as a pledge, for which the mortgagor could maintain an ejectment on tender of what was due. This doctrine which, though not expressly established by decisions directly on the point, has been glanced at in Wentz v. Dehaven, 1 Serg. & Rawle 312, and the Lessee of Simpson v. Ammons, 1 Binn. 175, is not peculiar to Pennsylvania. In New York, where the jurisdiction of the Chancellor' is as distinctly separated from that of the common law Courts as it is in England, the mortgagor is considered, for all purposes as to third persons, to be seised of the legal estate. In Hitchcock v. Harrington, 6 Johns. 290, C. J. Kent, delivering the opinion of the Court, says : “ it’is now the settled law in this Court, and the same principle has been recognised in the Court for the correction of Errors, that the mortgagor is to be deemed seised, notwithstanding the mortgage, as to all persons except the mortgagee and his representatives. When his interest is not in question, the mortgagor before foreclosure, or éntry under the mortgage, is considered, at law, as the owner of the land." The same principle is móre distinctly asserted in Collins v. Torry, 7 Johns. 277. Sedgwick v. Hollenback, ib. 376. Runyan v. Mersereau, 11, Johns. 534. Stanard v. Eldridge, 16 Johns. 254, and it may fairly be deduced from Tabele v. Tabele, 1 Johns. Cha. Rep. 45. Even in England it is not clear that the law is hot held so at the present day. Here there- was no interference of the mortgagees; but if there even had been, it could not have arrested the proceedings before judgment. Whatever claim (if any) they had to the,damages, could be enforced only on motion to take the money out of Court.

The second error assigned depends on the construction to be put on the tenth ,section of the Act of the 8th of March, 1815, by which the Schuylkill Navigation Company was incorporated-. The defendants requested the Court to direct the jury, that injury done to- the property could alone be taken-into consideration in estimating the damages, and not any injury that the plaintiff might have suffered in his, business, in consequence' of the dam, which was the subject of ,the action. The Court gave no opinion on the point raised by the distinction submitted ; but repeated the substance of the- section on which the question turns ;■ and then instructed the jury that the intrinsic value of the damages, without reference to circumstances that might induce the' plaintiff to estimate the amount of the injury sustained more highly than a stranger would think reasonable, was the standard by-which they ought to be governed. If therefore the charge should, on the point submitted, have been in the defendants’ favour, there is error. The tenth section provides: “That if any person shall be injured by means of any dam being erected as herein after mentioned, or the land of any person inundated by the swelling of the water in consequence of the erecting of any dam ; or any mill or other water works • injured by swelling the water into the tail race of any mill or other water works, which may have been erected on said river, or any stream of water .emptying Into the same, and if the President Managers and Company cannot agree with the owner thereof, on the compensation to be paid for such inJury, the same proceedings shall be had ás is provided in the eleventh section of this Act.” The section thus referred tp directs the mode of redress by the appointment of men, or by ... , -r», i an application to the Common. Pleas or the proper county, The material inquiry is: at'ivhat point of time were the jury to estimate the damage as having beer suffered ? Indisputably, at the time when the injury complained of was compíete; W’hich was the moment the dam was finished ; or rather, when the obstruction, by swelling the water, permanently produced its most injurious consequences. The principle, that the extent of an injury at the time it is suffered, is to govern the compensation to be' received, without regard to enhancement from subsequent circumstances, is familiar and applicable to all cases, which I at present recollect, where • compensation is to be made in damages. In cases of eviction of a vendee for want of title in ibe vendor, the value the land when it was conveyed, as ascertained by the price paid (which is the value affixed by the parties themselves,) is the measure of damages on a covenant of warranty. So in an action on a contract for the delivery, at a day specified, of goods purchased—the damages are to be estimated by the value of the article on the day of delivery, and’are not to be affected by any adventitious rise of the market, between that and the day of bringing the suit. Now here the- injury to be redressed was One done to the realty ; but altogether unlike a nuisance, for the continuance of which repeated actions may be brought, in each of which, damages may be recovered for the time intervening between the inception of the preceding suit, and the impetration of the writ in the cause which is then tried. The compensation was to be prospective, as well as retrospective ; but to be estimated with reference to the time when the injury was committed. It was in fact to be. the price of a privilege to swell the water to particular height for an indefinite time. Now this price was due the moment the privilege was entered upon,'and the price could be ascertained ; which was obviously, the time when the obstruction was first completed. The jury were therefore to ascertain what was then due ; and'the amount clearly could not be enhanced, or in any way affected, by subsequent injuries, the consequences of the obstruction. How. far the omitting- to instruct the jury to this effect .may have operated on the amount of the compensation assessed, I am. unable to say,, as the bills of exceptions contain no more of the evidence than is absolutely necessary to an understanding of the points submitted 5 but as the particular injury to •the plaintiff, in his business as'a manufacturer, was necessarily subsequent to the erection, and as the defendant prayed-the direction of the Court on the legal effect of the evidence relating to that part of the.case, he was entitled to have it; for so far it would have operated in his favour. The tenth section of the ninth article of the Constitution declares, that no man’s property shall be taken or applied to public use, without the consent of his representatives, and without just compensation being made but to let in considerations that are only collateral to the assuming of the rights of the citizen,would, in this instance, carry the principle of compensation,, even beyond' the constitutional injunction. It is- evident that the profit, in any branch of manufactures, must- mainly depend on the amount of capital invested, the number of workmen employed, and the extent of the business carried on; but it would be plainly unjust to put it in the power of the plaintiff, by an increase .of all these, to-an amount beyond What the demand for'the manufactured .article would justify, to charge .the defendant in the same proportion for the injury sustained by the impeding of his works in his business thus extended, as for a loss in his ordinary mode of carrying xt on: that would make the. defendant an insurer of ordinary profits in a new state of the business,' pushed to a morbid extent, and would put it in the power of the plaintiff to increase the damages to any extent he might think proper. .1 mention this to shew the danger of taking into consideration circumstances posterior to the time when the privilege is fully entered on, and its consequences, to the .individual to be compensated, are ascertained. The jury are to consider the matter just as if they were called on to value the injury at the moment when compensation could first be demanded: they are to value the injury to.the property, without reference to the person of the owner, or the actual state of his business; and in doing that, the. only safe rule is, to inquire what would the property- unaffected by the obstruction have sold for, at the time the injury was committed? what would it havt sold for as affected by the injury? The difference is the true measure of compensation. ' . A

Judgment'reversed, and a venire facias de T10V0 awarded.  