Hutchinson v. Granger

13 Vt. 386 | Vt. | 1841

The opinion of the court was delivered by

Redfield, J.

The present is an action of trespass on the case, for flowing the plaintiff’s land by means of a dam on defendant’s land, which had been kept up by him. The principal controversy in the case seems to have been determined by a former decision of this court, in chancery. The plaintiff still claims damage, to some extent, and offered testimony in the court below to show such damage, which was rejected by that court on the ground of variance.

The declaration, in this case, alleges that the entire darm was wrongfully erected and kept up by the defendant. The* proof was, that in the summer season, when the water was-' more than four inches deep on the top of the dam, the sluices should be raised,.*, e., the defendant was bound by covenant, running with the land, to raise them so as to lower the water to that height, if it might be, by opening the sluices;-

In actions of tort, it is well settled that the plaintiff is not bound to prove his whole declaration. If he prove enough of his declaration to make a good cause of action, he is entitled to recover. He must prove the very injury of which he-complains, but not to the full extent. If he alleges the dam-to be ten feet high, or unlawfully erected, or wholly unlawful, he may recover upon showing it five feet high, or unlawfully continued, or repaired, and made tighter or higher, so-that, in fact, it is but partly unlawful. If any portion of the dam is unlawfully erected or kept up, and it cause an injury to the plainliff of the kind he complains of, he may recover. And whether the dam was unlawfully kept up one day or one year is not material. If, then, any portion of the defendant’s dam was unlawfully kept up for a single day, so as to cause injury to the plaintiff, in the manner alleged, he is entitled to recover. 1 Stark. Ev. 6. Ed. 379, 400, and cases cited. And we do not think it important whether it were the gates and sluices that were unlawfully kept up, or any other part of the dam. If the defendant had a right to build a Asm five feet in height, or of wood, which will let the half ooze through the crevices, or with certain sluices open, and he build one ten feet high, or of impervious wall, or with the sluices closed, and thereby flow the plaintiff’s jan{^ g0 ag to cause injury, he is liable to an action. And in each of these cases the plaintiff may declare that the dam was unlawfully erected and kept up. He is not bound to prove the full extent of the wrong alleged, but may recover for any, the least portion of it, which causes him a legal injury. So, too, if he takes redress into his own hands, he can only abate the nuisance, so far as it-is unlawful. Nicholson v. Croft, Burr. 1188. Gardiner v. Croasdale, 1 Wm. Black. 200.

This is the only degree of strictness which is ever required in describing an injury, in an action of tort, or even in indictments for forcible injuries and wrongs. If an assault ^"alleged to be with a wooden staff, and prove to have been done with a stone, it is no variance. 2 Stark. Ev. 41. So, too, in all cases of indictment for nuisances, if the respondent is guilty of any part of the wrong alleged, he must be found guilty, and. the abatement will take place accordingly. The same is true in all actions where the allegation is divisible without destroying its identity. 1 Stark. Ev. 382, et seq.

But it is. argued by the defendant’s counsel, that the plaintiff has-not sustained the same injury of which he complains. The plaintiff alleges that defendant flowed his land, and here he might have stopped. There was no necessity of specifically setting forth any such damage as is the common and ordinary consequence of the act complained of, such as making the land wet and less productive, and more difficult of cultivation, and'destroying crops grown, or in the process ©f harvesting.

Any man of common discernment would expect this from the wrong complained of. None of these things come within the definition of.‘£< special damage,” which must be something unusual-and extraordinary, and not the common consequence of the wrong complained of.. And the fact that the plaintiff gratuitously' undertakes- to enumerate some portion of his general damage,, and which he might have proved without alleging it, will never preclude his also proving other general damage. And no one, I think, will pretend that the damage offered-to be shown in this case is not general damage. But it is further argued that the plaintiff should have declared against the defendant, “ for not taking his gates down when he was bound to,” whereas, the declaration is that he “ unlawfully kept them up.” Here is, indeed, a difference in form but not in substance. It is merely formal whether we say a man is dead, or that he is not alive, the terms are understood tobe equivalent.

We have regretted that the different members of the court should entertain opinions on this subject so exceedingly diverse ; but as questions of variance are more or less isolated, and depend so much upon their pecluiar circumstances, so that each new case is without precedent, and is not likely to become a precedent for any other, and, as is said by Mr. Starkie, (1 Ev. 6 Ed. 389,) these questions, especially in actions of tort, being addressed mainly “ to the discretion of the court,” it was not much to be wondered at, that the court might entertain different ©pinions, and it was also obvious, that when a cause had been three times argued, with the «ame result, it was desirable it should be decided.

Judgment affirmed.

Williams, Ch. J., dissenting.