Cheeves v. Danielly

74 Ga. 712 | Ga. | 1885

Jackson, Chief Justice.

This is an action orought by Danielly vs. Cheeves for the recovery of damages alleged to have been done by Cheeves’s cutting a ditch, which turned a smaller stream into one larger, bordering on Danielly’s, at a point much higher up the bordering stream than it formerly ran into it; and thus by banking sand and filling the bed of this stream with it, and also by pouring and backing sand and water on the plaintiff’s land, he had been damagéd. The ditch was cut through Cheeves’s own land and a consenting neighbor’s land, for the purpose of draining Oheeves’s bottoms, but was made to enter into the creek or river bordering on Danielly's land higher up than before, and thus he alleged damaged him, by sanding his land and wetting it and otherwise, so as to make it yield a smaller crop.

The jury found a verdict of one thousand dollars for Danielly, and Cheeves excepted to the refusal of a motion for a new trial, and assigns that refusal as error here.

1. "We think there should be a new trial on two or three of the grounds of the motion. First, accord and satisfaction was pleaded and relied upon by the defendant; and on the issue, whether or not the terms of the accord had been satisfied, and also in respect to what those terms were, the court applied the doctrine of estoppel, and on the ground that it was not favored by the courts, required a clearer and stronger degree of proof than in ordinary cases in civil proceedings, and charged to the effect that the jury must have clear or very clear evidence of Cheeves’s side of the controversy on this issue. In our judgment, the plea, though using in one place the word “ estopped,” is a plea of accord and satisfaction, and both on the question, did the parties agree on a settlement, and secondly, did Cheeves carry it out, the issue is like ordinary civil issues, and a mere preponderance of the testimony is enough to settle either point

2. We think that the court erred in the charge on general damages. It seems that the count for damage to the fee, or permanent damage to the land, was not relied upon, and was virtually withdrawn from the jury, yet the court charged to the effect that they could find general as well as special damage, the count for the latter only being before them. It is possible that the presiding judge may have meant, as argued by counsel, nominal damages, when he used the term general damages; but it certainly was not clear, and may have seriously misled the jury. The charge on the subject, as given in the record, is not as clear and easily understood as those of the able judge who presided usually are.

3. There is another ground on which we think the court went too far in this case, and that is on the subject of aggravating circumstances. The court charged the principle of law laid down in the Code that, “ in every tort there may be aggravating circumstances, either in the act or the intention, and in that event the jury may give additional damages, either to deter the wrong-doer from repeating the trespass, or to compensate the wounded feelings of the plaintiff.” Code, §3066. There is no aggravating circumstance here shown in intention ; nor is there anything in the act calling' for or authorizing the charge. The trespass is not such a one as could well be repeated, and there is no violence in it to wound feelings. It is but an action on the case for damages consequent on the act of one who was draining his own land, and though he may be responsible for actual damage thereby done to his neighbor’s property, he is hardly liable for additional damages in such a case.

4. There was no error in admitting evidence to show the productiveness and dryness of the land of plaintiff for many years, and to extend the inquiry far back into the past, so as to show that it had been good for a very long time before the change in Tobesofkee creek, and then only began to fail, and did fail. It is a circumstance bearing on that issue.

5. There was no error in admitting testimony to show that defendant’s land was drained of water, and the acreage and extent thereof, in order to show how much more water got into the creek defendant changed, and thence into the large stream, whereby plaintiff alleged he was hurt; but the amount or value of the crop made thereby was hardly admissible. It is damage to his land and crops for which plaintiff sued, and not increased crops and profits made by defendant on his land.

6. We see no error in the fourth and fifth grounds of the motion, objecting to certain charges of the court, to the effect that, if the plaintiff’s land was damaged by the water being turned into Tobesofkee creek from the smaller creek sooner than natural causes would have carried it there, though the jury believed eventually it might have gone there any way, there could be a recovery, and if the water turned into Tobesofkee caused the sand to be cast on the plaintiff’s land, then he could recover, no matter whence the sand came, unless, in both cases, the evidence shows good reason to the contrary.

The points about jurors, newly discovered evidence, etc , need not be considered, as the case goes back for trial, and it would be fruitless to decide them.

On the general ground, that the verdict is contrary to law and to evidence, we decline to pass, as the case may develop the facts more fully, and make the law applicable thereto clearer to the court and easier of application.

Judgment reversed.