135 Mich. 226 | Mich. | 1903
Lead Opinion
(after stating the facts). Under this judgment the defendant may maintain his dam perpetually, thus throwing all the waters accumulating to the east thereof onto the plaintiff’s land, who, upon payment, will be compensated for the permanent injury to his farm.
The main contention on behalf of the defendant is that there was no evidence to support the charge. He insists that there is no evidence tending to show that any water ever flowed upon defendant’s premises, except occasionally, and that such water is carried upon and over defendant’s land by a three-inch tile drain, and that there is no evidence tending to show that the change in the original channel came about by natural causes, but that it was caused solely by cultivation of Mr. Hotrum’s land". Two juries have rendered verdicts for the plaintiff. The learned circuit judge, after the second trial was concluded, entertained a motion for a new trial, in which motion all the points now raised were alleged as error, and carefully considered by the judge. Perhaps the weight of the evidence is with the defendant, but there is conflicting testi
We do not deem it essential to review the testimony. It would serve no good purpose. It is sufficient to say that upon all the points there was conflicting evidence. Its weight was for the jury. While we might come to a different conclusion as to the weight of the evidence than did the circuit judge,'yet we do not think this a case in which we should order a new trial for that reason.
Counsel for defendant assign error upon the., refusal of the court to give several requests which they preferred in his behalf. Inasmuch as no exception to such refusal was taken upon the trial, they cannot now be considered. Runnells v. Village of Pentwater, 109 Mich. 514 (67 N. W. 558); Banks v. Cramer, 109 Mich. 168 (66 N. W. 946).
Counsel also allege error upon rulings upon the admission of testimony. No exceptions were taken to the rulings, and they cannot, therefore, be considered.
Judgment affirmed.
Rehearing
on application for rehearing.
The briefs of counsel in this case were prepared and filed upon the understanding that Runnells v. Village of Pentwater, 109 Mich. 514 (67 N. W. 558), was still the law; that that decision was neither overruled nor changed by statute. We disposed of the case upon that understanding. A motion for rehearing was made upon the same understanding. Some days after the motion was made, a supplemental brief was filed, calling our .attention to Act No. 52 of the Public Acts of 1901, which
Speaking for myself, I would deny the rehearing where the case was submitted upon the mutual understanding as to the rule of practice, and mutual ignorance of a statute modifying a decision of the court. My Brethren, however, are of the opinion that they should comply with the statute. We have therefore examined the requests and the charge of the court. Some of these requests are directly in conflict with the charge of the court as found in the opinion. The instruction of the court below we held to be a correct statement of the law. We do not deem it essential to give these requests or to discuss them. It is sufficient to say that the instruction of the court covered the entire ground and correctly stated the law, and there was sufficient conflict of evidence to submit the case to the jury.
Rehearing denied.
