39 Barb. 600 | N.Y. Sup. Ct. | 1862
This case arises 'upon exceptions ordered to be heard in the first instance at the general term, and no question therefore as to the weight of the evidence can he made or considered. I think the justice properly excluded the question put to the witness Hynds requesting him to look at a copy of the memorandum he had made, and state the width of the flush hoards. The witness had already testified to the width of the flush boards, from the copy memorandum, and even if the question had been originally proper, I see no necessity for its' repetition.
I am inclined to think that the decisions of the justice on the trial, as to the mode of proving the damages sustained by the plaintiff by reason of the injury complained of, were correct, but as the jury found a verdict in favor of the defendants, without considering the question of damages, this point is of no consequence.
The charge of the court as.originally made, mainly covered the case presented by the evidence. The first request to charge embraced propositions not entirely applicable, which might perhaps have a tendency to mislead the jury from the real and only question involved, viz '. the effect of the new dam in raising the height of the water, and thus causing an injury to the plaintiff. When the request was made the judge had already charged that if the defendant had increased the height of the water he was liable for any damages -which accrued; and the material or structure used made no difference, so long as the water was not raised. I think the charge covered the whole ground, and hence it was proper to refuse to charge as requested. But if it did not, the subsequent charge did so. The effect and substance of it was to present to the jury the question whether the land and premises had been overflowed at any time, and injuries had been done to the plaintiff by the defendants increasing the height of the dam in making repairs. Unless some damage had been done, the defendants were not liable; and a mere change from a temporary to a permanent structure could make no
The defendants could not be made liable for the reason that the plaintiff owned the land on one side of the stream where the dam was erected, unless some injury had been done or some trespass committed by them. Ho such proposition was presented, nor was the judge asked to charge in reference to it. Under no circumstances could the defendants be responsible for making the permanent structure on the dam, unless by means of it the plaintiff was damaged.
I do not think the next exception was well taken, and the judge was right in refusing to charge that the owners of the dam acquired no right by the use of temporary flush boards to retain the water during periods of the year when there was low water, and to substitute for any portion of such flush boards a permanent superstructure. So long as the height of the dam was not raised by the permanent structure, and was no greater than it was before ; so long as the improvements made by the defendants inflicted no injury upon the plaintiff; I think they were lawful and. proper. Making the structure more firm and the dam tighter, so as to enjoy the full benefit of the privilege at the height it originally was, can furnish no cause of complaint, or create a liability. This principle was settled in Cowell v. Thayer (5 Metcalf, 253, 259,) which is decisive of this case. It is held in that case that where a man has by his dam raised a certain head of water, and maintained such dam long enough to raise the presumption of a grant, he may repair his dam, to make it tighter, although the effect may be to keep the water more constantly at an upper level.
Where a prescriptive right has been acquired to a constant mill privilege, by keeping up and using a dam for more than twenty years, Shaw, G. J. says, in the case cited, “ If he repairs the dam without so changing it as to raise the water higher than the old dam when tight and in repair
Hogeboom, Peckham and Miller, Justices.]
The principle here enunciated was sustained by the general term on the appeal from the decision of the referee. (See opinion.)
In view of the whole case, I am of the opinion that there was no error committed on the trial. A new trial must therefore he denied, with costs.
