Kintz v. McNeal

1 Denio 436 | Court for the Trial of Impeachments and Correction of Errors | 1845

By the Court, Bronson, Ch. J.

The second count was for enlarging the dam, and seems well enough adapted to the case which the plaintiff made on the trial. And although there was a variance between the proof and- the first count, the judge was right in refusing to nonsuit the plaintiff. The judge was also right in refusing to charge the jury as the defendants requested. There was evidence from which the jury might find, that what were called the flush boards were on the dam at the time the action was commenced.

As to the former suit, the offer does not go far enough to show what particular question was tried before the justice. And besides, if the matter tried was the right of the defendants to flow the plaintiff’s land, the justice exceeded fcis jurisdiction, and the judgment cannot operate as an estoppel,

There is nothing in the bill of exceptions ; and the only remaining question is on the special verdict.

The special verdict is defective. It only finds part of the matters in issue. The jury have noticed one of the alleged dams, without finding whether the defendants are or are not guilty in relation to the others: and they have said nothing whatever about the sluices, trenches and cuts of which the plaintiff complained ; nor of their effects. They should have found one way'or the other in relation to the whole issue. (Co. Litt. 227, (a); Finymore v. Sanky, Cro. Eliz. 133; Hooper v. Shepherd, 2 Str. 1089; Rosse's case, 3 Leon. 94; Rex v. Simons, Sayer, 34, per Denison, J.; Graves v. Morley, 3 Lev. 55 ; Cattle v. Andrews, 3 Salk. 372.) There must be a venire de novo.

The remedies by assize of nuisance, and quod permittat prosternere have been out of use in .England for two or three centuries; and this is probably the first instance in which a writ of nuisance was ever prosecuted in this state. How the parties have got on so far with this antiquated and very difficult proceeding, I am unable to say; but it has probably been by consent. The assize of nuisance is an existing remedy in Pennsylvania : but the court have found it necessary to disregard the ancient forms, and adapt the action to modern practice. (Barnet v. Ihrie, 17 Serg. & Rawle, 174.) It is doubtful whether we have any right to modernize this remedy; and I am disposed to adopt the language of Ch. J. Byre, in Jones v. Clay, (1 Bos. & Pull. 191,) and say, if you will have a writ of nuisance, you must follow the course marked out by the law. His remark related to a writ of right, which had not become entirely obsolete; and yet the court would not suffer a departure from the ancient practice, even with the consent, of both parties. '

New trial granted.