Howe v. Ray

113 Mass. 88 | Mass. | 1873

Colt, J.

As a general rule, in estimating damages under the mill act, it is sufficient for the jury to consider what would have been the condition of the land flowed during the time covered by the complaint if no dam had been erected, and to assess for annual damage so much as the value of the annual improvement is diminished. The comparison to be made is between the present value and productiveness of the land and what it would have been if it had not been injured by the dam. The instructions in this case were in accordance with this rule as laid down in Palmer Company v. Ferrill, 17 Pick. 58, 66, and they are to be taken as sufficient unless there is something which makes this case exceptional. Bates v. Ray, 102 Mass. 458.

The damage complained of was caused by a dam erected many years ago, which originally flowed a, portion of the lower meadow described in the complaint. This old dam was increased in height before the commencement of the three years covered by the complaint, and thereby the rest of the lower and all of the upper meadow was flowed. Evidence was introduced to show the condition and value of all the land and crops before the erection of any dam and before the commencement of any injury, and also, against the respondents’ objection, to show its condition immediately prior to the time when the addition was made to the height of the dam. Upon the question whether the old dam was used as a winter privilege only, the evidence was conflicting.

It is contended that the productive condition of the land just prior to the time of raising • the dam, cannot be referred to as a standard of comparison without 'injustice to the respondents, and that therefore the instructions asked for should have been given. In one aspect of the case this may be true. If by the direct effect of the dam as originally built the productive value of the upper meadow had been increased, it may be that such increase ought not to be used to charge the respondents with increased damage produced by the subsequent addition to its height. If on the other hand, up to that time, the upper meadow had been positively injured instead of being benefited, or if it had remained wholly unaffected, then the admission of the evidence and the refusal to rule as requested have done the respondents no harm. It is plain that if the upper meadow, since the dam was originally built, had increased in value by improved cultivation or by any other cause than that of the dam itself, then the exclusion of the evidence and the ruling asked for would have been an injustice to the complainant, because as to that part of the land as well as the rest, the damage is to be measured by a comparison of its productive value at the time when it is first injured, with its value during the time covered by the complaint.

An objection to the admission of evidence can be supported only by showing that it was not admissible for any purpose, or that the judge refused to limit its effect and permitted it to be used for a purpose for which it was not competent, and by further showing that the evidence, if incompetent, was in some way injurious to the excepting party. It is for the party taking exceptions to cause such facts to appear in evidence and to be reported in the bill of exceptions as will show that the ruling at the trial was both wrong and injurious. Eastman v. Crosby, 8 Allen, 206.

The difficulty with the exceptions in this case is that it does not appear that the evidence offered was not competent upon the grounds above stated, or if incompetent, that its admission was injurious to the respondents. And it follows that the instructions asked were either not required or were erroneous.

Verdict accepted.