| N.H. | Dec 15, 1861
The first question raised by this case relates to the ruling as to the penstock. The plaintiff claims that the taking of the water from the plaintiff’s flume was wrongful, and subjected the defendant to nominal damages as an infringement of the plaintiff’s right.
If we assume that the case shows no right on the part of the defendant to draw water from the flume, and that the act of taking water from the flume was wrongful, and though accompanied by no claim of right, gave the plaintiff a right to recover nominal damages for the vindication of his right in an action for that purpose ; the question here is, if the declaration sets forth any grievance of that kind, or claims damages on that account.
The gravamen alleged in the declaration is, that the defendant wrongfully drew and took so much of the water of said river from said dam and flume, that he thereby deprived the plaintiff of water to carry his grist-mill. Now it is evident that the complaint is not that the defendant drew water from the flume to his injury, but that he drew so much water as to prevent the use of his grist-mill. There is nothing in the declaration which suggests that the ground of complaint was, that the water was wrongfully drawn at a place where the defendant had no right to take it. If the declaration had been that the defendant wrongfully took large quantities of water from the flume, whereby the plaintiff was deprived of the water necessary to carry his mill, the plaintiff might recover for drawing the water where he had no right to draw it, from the flume. But as the declaration is drawn, we think the ruling of the court is correct.
The evidence tending to contradict Chase was inadmissible, upon the ground that the fact upon which he was contradicted was immaterial. The general rule on this subject is laid down in Seavey v. Dearborn, 19 N. H. 355; Combs v. Winchester, 39 N. H. 13. It is generally immaterial what a witness has said, unless it has a bearing upon his state of feeling toward one or both the parties, and if the witness is asked the question no evidence is admissible to contradict him. It is not suggested that the questions had any relation to the state of feeling of Chase toward the defendant, which might render them competent.
Beside, it is quite immaterial whether the witness had bound or chained his wheels, or sluiced the water. The evidence proved nothing either way, as to the questions in controversy in the case.
It is suggested that the evidence as to Chase’s statements did not
The jury were allowed to view the mills by consent of the parties. It may be generally regarded as of doubtful utility to allow a view when the condition of things has been changed, or is materially different from what it was at the time of the grievance complained of; it may be allowed in the discretion of the court, to give to the jury a degree of familiarity with the locality which would render the evidence more intelligible, but a caution would be needed to prevent the jury from being misled.
It would be competent for the parties to show measurements of the water and the like, so long as the condition of the mills and the river remained substantially unchanged. If there was a change, but not of a very material character, they could hardly be excluded, since change is the daily incident of every thing of that kind. From the nature of the ease, it must be, to some extent, a matter of discretion for the court to determine what evidence shall be admitted in such cases. If the change was slight, it would be clearly competent. The evidence of price is never confined to the day of sale, if none can be reached applying to that day, but evidence may be introduced applying to times more or less remote, or to places more or less distant, according to circumstances. And it does not occur to us that there is any thing in the character of these measurements, which should require them to be confined to the time alleged in the writ, or to the exact condition of things then existing; but they might, under proper circumstances, be admitted, as tending to show what must probably have been the condition of things at the time in question. There is nothing stated in the case which shows that the discretion of the court was not properly exercised in the admission of this evidence.
The suggestion in the case that it was merely explanatory of what the j ury had seen, and that it was not likely on that account to mislead them, but rather to aid them in comparing the facts then, with their condition as they were shown to be by other evidence in the case, seems to us to have a reasonable foundation.
Some exception seems to be taken to the instructions given to the jury, not because they contained any unsound legal opinion, but because they are supposed to cast some censure on the plaintiff' but there does not seem to us any foundation for the objection. It is not remarkable that counsel are apt to think some expression of the court may have had more weight with the jury than our experience leads us to believe should be attributed to them.
On these views there must be
Judgment on the verdict.