75 Neb. 169 | Neb. | 1905
A quarter of a century ago there were two water mills and dams on the Nemaha river in Richardson county in this state, and situated several miles apart. The proprietor of the upper mill, called the “Fall Mill,” had the superior and prior right, and begun an action against the proprietor of the lower mill, called the “Exchange Mill,” alleging that the latter, by means of his dam, had set the water back in the stream so as to flood the wheel of the plaintiff, and praying that the defendant be perpetually enjoined from continuing so to do. The suit was tried in June, 1885, and resulted in a general finding for the plaintiff, and in a decree perpetually enjoining the defendant “from flowing the water in the Nemaha river, upon which the respective mills of the parties are situated, back upon
The principal contention of the plaintiff in error is that the matter in issue is res adjudicata, and that his right of recovery is conclusively established by the judgment in the former case, but in this he is obviously mistaken. All the former case decided has been already stated, except that the defendant had in that instance violated the plaintiff’s rights, to the damage of the latter, but whether the proprietor of the lower mill was guilty of a like wrong 25 years later must, of course, be determined by the evidence adduced on the trial of the present case. The evidence upon that issue is conflicting, and the court will not, in such circumstances, disturb the verdict, except for specific error occurring at the trial.
The defendant offered in evidence a letter written by the plaintiff to a third person, in some respects contradictory
A new trial is also asked because of the alleged misconduct of a juror. Two witnesses, Abbott and Towle, testified that, during the period of the alleged flooding complained of, they had observed a riffle or ripple in the stream between the two dams. The witnesses were not contradicted, and it is admitted by plaintiff in error in its brief that “this testimony was wholly immaterial, for the reason that plaintiff does not contend that there was no current between the two dams. No sane man would make such a contention.” The alleged misconduct complained of was a statement by one of the jurors in the jury room that he believed the witnesses, Abbott and Towle, because he had observed the riffle or current himself. If the fact had been material and in dispute, the conduct of the juror might have been prejudicial, but, since it Avas neither, it does not, we think, furnish ground for complaint.
Counsel for plaintiff .in error submitted their cause without oral argument and the foregoing are all the assignments of error we find treated of in their brief. We think none of them sufficient to require a reversal, and recommend that the judgment of the district court be affirmed.
By the Court: For the reasons stated in the foregoing opinion, it is ordered that the judgment of the district court be
Affirmed.