43 Iowa 92 | Iowa | 1876
I. The appellant claims that the verdict was contrary to the evidence. It is said that the undisputed evidence shows that plaintiff was the owner of lot 3, in section 33, by deed from one Dervishek, and had been such owner since 1868; that as to the other land, he was certainly in possession when the dam was erected, and was entitled to at least nominal damages. It is doubtless true that plaintiff owned said lot 3 by title from said Dervishek, and that no license from said E. Clark could give a right to overflow the same. But as to whether the plaintiff sustained damage, the evidence is conflicting. The defendant testifies that the plaintiff told him in 1871, which was three years after the dam was erected, that no damage had been done; that nobody was injured, and that defendant had done a great deal of good. One Butler testified, in substance, that he did not think that lot 3 had been injured. There was some evidence,' then, to justify the jury in finding for the defendant.
The appellant claims that there was no uncertainty in the evidence in regard to the nature of his possession, and that he
The plaintiff contends that this instruction is erroneous, because it would require a person purchasing a farm bordering upon a stream to take notice of expenditures of all mill owners below for material to build new dams.
Where a person is engaged in erecting a dam, which will cause certain land to be overflowed, and another person, without knowledge of the dam, purchases the land and pays for it in whole or in part, we do not think that the person erecting the dam has a right to proceed and overflow the’land, because
But the plaintiff does not appear from the evidence to have paid any part of the purchase money, nor obtained a deed. He acquired no right, therefore, superior to that of defendant, if defendant, as the instruction supposes, had, prior to plaintiff’s verbal contract, obtained a license from Ezekiel Clark to overflow the land and made large expenditures in the erection of the dam.
IY. The court further instructed the jury as follows: “If you find from the evidence that the previous verbal contract was materially different from that which was written June 17, 1870, as, for instance, that it was a mere lease, or that it was a contract of sale, different in terms from the written one; and you find that Ezekiel Clark made to Close the warranty deed for one-half the dam and power on December 22, 1869, and the new dam was then raised and completed, Ezekiel’s warranty covered the dam as it then was, and being the owner of the land now claimed by the plaintiff, it conveyed, to the plaintiff the right, so far as the lands are concerned, to keep the dam up to the then height, and the plaintiff', in this view of the case, cannot recover for any damages which have occurred since the 22d day of December, 1869. In other words, a conveyance of the dam and water included the water in the dam, and for the whole length of it, and the land covered by it, or affected by it, as well as the water used upon the wheels and machinery.”
If this instruction contains error, it is error without prejudice. If there was any difference between the verbal and written agreements, the verbal agreement was so materially different that the plaintiff could not recover under it. It was wdiat the plaintiff says it was: that he should work the quarries, do what he pleased with the land, and take it at any time at a certain price. There is no evidence that he worked the quarries, or did anything with the land except to take possession.
Affirmed.