20 Tenn. 473 | Tenn. | 1840
delivered the opinion of the court.
This is an action on the case for a nuisance in overflowing the land of plaintiff by means of the back-water of defendants’ mill-dam. Some years since the plaintiff, being owner of ten acres of ground, built thereon a mill in partnership and conjunction with one Owen. Plaintiff did not then own the land above the mill; it belonged to a stranger; but the dam constructed by him and Owen overflowed the land above, and such overflow was necessary to the useful and profitable operation of said mill. After the construction of the mill and dam, and the use of it for some time, the plaintiff sold and by deed conveyed the ten acres of land, with the mill and appurtenances, to said Owen, who subsequently sold and conveyed to one Brown. Plaintiff then purchased the land above the mill, a portion of which was thus overflowed with water. Brown died; his heirs were minors; and one Johnson, who, wa.s his administrator,, took possession of
A verdict was rendered for the defendants, which the court refused, on the motion of the plaintiff, to set aside. The plaintiff has prosecuted his writ of error to reverse the judgment, because a new trial was not granted for the supposed misdirection of the court, and on the ground of alleged misconduct of the jury set forth in certain affidavits annexed to the bill of exceptions.
1. Is there error in what is said by the court on the subject of the record of the suit against Johnson? It is argued that there is, because it is said that although there appears to have been no interest on the part of Johnson in the premises, nor any privity hi estate, or other privity between him and the defendants, so that the record could be evidence against them to prove or establish the nuisance as a matter of fact, still that every record is competent to prove the fact of its
2. Is there any error in that part of the charge of the court which states the right of the defendants as against the plaintiffs to maintain their mill-dam at the same height as when he conveyed it to those under whom the defendants claim? It is said to be error because the record does not show that the deed from the plaintiff contained a covenant of general warranty. 'But it is answered that it does not show the contrary, and that it is the business and duty of those who allege error in the charge of the court or the proceedings below to show by the record that it existed. It is said that the water which overflowed the land of a stranger at the time of plaintiff’s conveyance, though an easement and appurtenance of the land and mill, yet being a wrong to such stranger, did not pass by the deed. The right of the stranger did not pass, possibly; but as between the bargainor and bargainee it did pass- And when such bargainor buys of the stranger he is estopped by his previous deed, and cannot, as the stranger could, complain of such easement, or detach such appur