13 S.D. 211 | S.D. | 1900
Plaintiff, the owner of 160 acres of land contiguous to defendant’s corporate boundaries, brought this action to recover damages occasioned during a series of years by the negligence of the defendant in permitting the water from its artesian well to flow upon, submerge, and destroy the usefulness of one-half the entire tract in the manner set forth ill his complaint, as follows: “That the said well was constructed by said defendant for its own use for fire protection, and to obtain a supply of water for said city, and defendant has ever since and during the last six years maintained said well, and permitted the water to flow out of the same and away therefrom. That the ¡defendant, without the plaintiff’s consent, has permitted and allowed said water during the past six years to flow away from said well, across the streets and alleys and other lands within said city, and over and upon the said lands belonging to said plaintiff. That said water has so flowed over and upon the said lands of plaintiff in large quantities for the years 1893, 1894. 1895, 1896, 1897, and 1898, and during the season of each of said years proper for the planting and gro lying of said crops. That said lands of plaintiff were hay and grain lands, and suited to the production of crops, and said water so permitted to flow by defefendant has covered during each of said years eighty acres of said lands of said plaintiff,
Immediately prior to the trial, one of the witnesses for respondent, shown to be familiar with the locus in quo, drew what the record discloses to be “a pencil sketch, showing the boundaries of the land in controversy, and the other lands in that vicinity, and also indicating by pencil lines the draws or depressions upon the land in controversy and upon other lands
The remaining question presented by the record relates to the refusal of the court to give certain instructions requested by counsel for appellant, and to the charge of the court upon its own motion, as follows: “So far as the fact of damages is concerned, the plaintiff:, as I have already said to you, claims, by reason of the water which has been on the premises up to this time, the land has been rendered less productive, and will continue less productive for the period of five years to come. I don’t know that it is claimed that .its productiveness will be
No objection was offered to the measure of damages employed, nor to the introduction of testimony consistent therewith, and no claim is made that the evidence i.s insufficient to sustain the verdict. While the court declined to give in exact phraseology certain instructions offered by counsel for appellant, the substance of every proper request was contained in the charge of the court, which so aptly expressed what appellant claimed to be the law of the case that no good reason for complaint has been assigned. According to a.familiar rule, no exception lies to a refusal to give an instruction in the terms requested, if it be given in substance by the court. In fact, the practice of taking the instructions requested, and formulating therefrom, so far as servicable, a general charge, expressed in the language of the court, without unecessary repetition, and covering all matters of law arising from the evidence, has received special commendation. 11 Enc. Pl. & Prac. 288-290; Weld v. Brooks, 152 Mass. 297, 25 N. E. 719; Bissot v. State, 53 Ind. 408; Rounsaville v. Watters, 94 Ga. 707, 20 S. E. 93; Railway Co. v. Ward, 4 Colo. 30; Deitz v. Regnier; 27 Kan. 94.