18 Ga. 539 | Ga. | 1855
By the Court.
delivering the opinion.
The Court bad no right to impose such terms. It is not unusual, where a verdict has been recovered for too much, to require they)laintiff to remit the excess to avoid another trial; but we know of no practice to justify the case before us. Indeed, it is obviously against principle. What right has the Court to determine what the nominal damages shall be ? Whether one dollar or five dollars ?
But, waiving this view, there is another objection to this proceeding, which is insuperable. The plaintiff was entitled to á verdict, because it established his right; and the Court had no power to deprive him of this advantage ; one which would serve to answer.many valuable purposes.
And we see nothing to change or lhodify that opinion. 'True, the plaintiff’s fraction, No. 1, is bounded by the Chattahoochee River : but by construction of law, it reaches to the 'opposite shore, unless there are expressions in the terms of the grant, taken in connection with the situation and condition of the land granted, which clearly indicate the intention of the State to stop at the eastern edge or margin of the river. We see in the' grant to Col. Jones, the plaintiff, no reservation or restriction, express or necessarily implied, which controls the operation of the general presumption in favor of riparian proprietors, and which makes his particular grant an exception to the general rule.
But suppose Col. Jones, as a riparian grantee, was restricted to the thread or middle of the stream; still, was he riot entitled to maintain trespass against the defendants? They rely upon a.cfrawteo^from the State, and a conveyance from the City Counl»]$ j^ade in pursuance thereof. The Act of Incorporation of 184$has been read, but the deed or .deeds made to the Water j^.Jf<tmpany, by the City Council, have not been produced^ We are judicially ignorant, therefore, of their contents?' ’Á/ácording to the Act of 1845, the dam of the Water-Lot Company was to be built in pursuance of the contract made with the Council. Suppose it should turn out to be true? as represented by Col. Jones to be the cáse, that these conveyances only authorize a dam to be constructed five feet high, -which would not interfere with plaintiff’s mill, and they have erected one between seven and ten feet, according to the proof in the record, and by reason of said excess the plaintiff’s water-wheel is overflown, is it not apparent that the charter from the State and the deeds from the Council, would constitute no justification for the damage done to plaintiff’s property?
In any view of this case, then, the judgment of the Court below was erroneous, and a new trial must be granted.