McTavish v. Carroll

| Md. | May 31, 1859

Le Grand, C. J.,

delivered the opinion of this court.

This case is, for the second time, before this court. Tho result of the former appeal will be found in 7 Md. Rep., 352. As now presented it rests on three exceptions, the first to the admission of evidence offered by the plaintiff, the second, to the instructions of the court below, given at the instance of the plaintiff, and the third, to the rejection of the prayers offered pn the part of the defendant.

The first exception sets out the title of the plaintiff to the land, on which is erected an ancient mill, with the privilege of supplying that mill with water, by means of a dam erected on, and a race through, the land of defendant. It shows the erection by defendant of a post and rail fence, along side the race, and across a road which the plaintiff had been accustomed to use in repairing the dam and race; that the fence was an obstruction to the plaintiff in his work of repair, and that shortly after the erection of the fence, the race got out of order and required repair, and that the breaches increased so much by the 14th June 1852, that the mill was then stopped for want of water, and since ceased to be used. The plaintiff then offered to prove, that he was “the owner of a large body of land around said mill, and that he was accustomed to grind his grain, raised on said land, at said mill, for his cattle and horses, as well as for the use of his hands and family, and that, in consequence of the stoppage of said mill, he had been compelled to carry his grain to another mill, at a greater distance; and he offered to show the cost of such increased transportation, as a part of the damages sustained by him.” To the admissibility of which evidence the defendant objected, for that purpose, but the court overruled the objection and admitted the evidence to go to the jury. It will be observed, that the objection to the admissibility of the evidence, is not to it for any purpose, but “for that purpose.” The inquiry then is, what is that purpose? The offer answers the question; the increased cost of transportation as pari of th e damages.” The objection does not extend to the other elements of the offer, but is confined to the increased cost of transportation, being shown as a part of the damages, and whether or not it was admissible for the purpose for which it was offered, depends upon the character of the plaintiff’s declaration. The language of the.declaration, which states the damage complained of, is as follows: “Whereby the said road or way there, was, during all that time, stopped and obstructed, and the said plaintiff and his servants could not, during all or any part of that time, pass or repass, on foot, with horses, carts, oxen and wagons, from the said mill, along the banks of said race, to dig out and repair the banks thereof, from the said mill to the said dam, over the close of the said defendant, and from the said dam back again to the said mil], as occasion required, as they ought to have done; and the said plaintiff, during all that time, was deprived of the use, benefit and advantage, of the said way, and was prevented and hindered from repairing or amending said race and the banks thereof, whereby the said mill became and was, during all that time aforesaid, idle and incapable of being worked, by reason of the said race, and its banks, being broken down and out of repair, so that thewaler could not flow through it from the said dam to the mill. — ■ Wherefore the plaintiff lost all the benefit and profit, which otherwise he would have had and made from the working of said mill, and, the custom and trade thereof. ’ ’

The elementary books, as well as decided cases, are full of disquisitions on the necessity of declaring specially, when special damages are sought to be recovered, but it is not infrequently difficult to draw precisely the line, between wiiat is technically general and special damage. Perhaps this has been as well done by Professor Greenleaf, as by any other writer. He, in the 2nd vol. of his treatise on the law of evidence, section 254, thus stales the rule:' — '“AH damage must be the result of the injury complained of; whether it consist in the withholding of a legal right, or a breach of a duty legally due to the plaintiff. Those which necessarily result, are termed general damages, being shown under the ad damnum, or general allegation of damages, at the end of the declaration; for the defendant must be presumed to be aware of the necessary consequences of his conduct, and therefore cannot be taken by surprise in the proof of them. Some damages are always presumed to follow from the violation of any right, or duty, implied by law; and therefore the law will, in such cases, award nominal damages, if none greater are proved. But where the damages, though the natural consequences of the act complained of, are not the necessary result of it, they are termed special damages, which the law does not imply; and therefore, in order to prevent a surprise upon the defendant, they must be particularly specified in the declaration, or the plaintiff will not be permitted to give evidence of them at the trial-,But where the special damage is properly alleged, and is the natural consequence of the wrongful act, the jury may infer it from the principal fact.” This analysis of the law, in this regard, is fully sustained by the authorities referred to by the writer, and also by this court in the case of Ellicott vs. Lamborne, 2 Md. Rep., 131.

So much for the principle. The loss complained of is, “the' benefit and profit which otherwise he would have had and made from the working of the mill, and the custom and trade thereof.” Now although the cost of increased transportation,in the particular case, may have been the natural, yet it was' not the inevitable or necessary consequence of the acts of the defendant complained of, and if it were not the latter, no' proof could be given of it without its having been alleged in the declaration. There may have been fifty, or more, mills more convenient to the plaintiff than the one whose working was interfered with, and their use would not have increased-the cost of transportation, and, if such were the case,' then the .cost of transportation could not have been the necessary con.sequence of the act complained of. If, as was doubtless the fact, the mill in question was the most convenient for tlie use of the plaintiff, and its being rendered useless forced him to go elsewhere, at a greater cost of transportation, his declaration should have so alleged. Under this declaration he is only entitled to recover, as general damages, the value of the use of the mill of which he was deprived. After what we have said, it must be manifest we do not agree with the senior counsel for the appellee,-in his understanding of what was decided in the case of Regg vs. Warfield, 7 Md. Rep., 582. That case, to our apprehension, conclusively settles the question in this exception, in opposition to his views; it was decided, that if evidence, which is the present case, be offered for a particular purpose, be inadmissible for that purpose, it is properly rejected, though admissible generally,or for some other object.

The second and third exceptions relate to the ruling of the court, in regard to the prayers offered by the plaintiff and the defendant. In addition to the evidence contained in (he first exception, testimony was given to show the original condition of the fence erected across the way the plaintiff had been accustomed to travel, to make repair of the dam and race; that it was constructed so as to be moved with facility, and that after it had been erected for some túne, the defendant caused his manager to take the rails out and have them made looser, but this was after the breach in the race ¡¡ad first occurred. Besides this testimony, it was shown in proof by defendant, that he told his manager, who was going to the house of the plaintiff, to inform him, that he, the plaintiff, was at liberty to remove the fence whenever he found occasion to repair his race or dam, or if he would not, that the defendant’s manager would, at any time the plaintiff might require, remove the obstructions for that purpose, and that the said manager did, on that day, so inform the plaintiff. The defendant also gave evidence, that in the embankment, at a short distance below the dam, there was a depression on the embankment, over which the water flowed out of the race; that the plaintiff repaired this place, so that there is no longer any waste of water there, and at high water the water flows back and forward.

When this case was heretofore under consideration, this court, as clearly as it could, defined the right of the plaintiff to pass over the road for the purpose of repairs, and it is not necessary what was then said should be now repeated; suffice it to say, the right is unquestionable.

We think the court properly granted the first and third prayers of the plaintiff, and rejected the first prayer of the defendant. The first and third prayers of the plaintiff are based upon the hypothesis, that the damage complained of, because of the obstructions interposed by the defendant, occurred (if the jury should find the fact) before the 14th day of June 1852, and before the 29th of July 1852, the time when the defendant’s message was delivered to the plaintiff, and claims the right to recover for such damage, notwithstanding such subsequent message. If the jury found the facts set out in those prayers, the friendly message of the 29th of July could not do away with any cause of action which had already accrued.

The materiality of the obstruction was placed before the jury in the granting of the defendant’s second prayer, and, therefore, its omission in the plaintiff’s prayers is no sufficient cause of complaint to justify a reversal on that account.

(Decided May 31st, 1859.)

The first prayer of the defendant defeats the plaintiff’s right of recovery, if the jury should believe that the fence did not materially obstruct the plaintiff in the necessary repair of his dam or race. Whatever benefit the granting of this part of the prayer would have been to the defendant, he had by the granting of his second prayer, and therefore he has no right to complain. But the prayer is defective in other particulars. It defines the measure of damages to be the reasonable cost of removing the obstructions, if the jury should believe that the plaintiff did not, at any time prior to the commencement of this action, give notice to the defendant of the existence of the breach in said race, (by reason of which the plaintiff claims that he sustained damage,) and require the defendant to remove the obstruction. We think the proper measure of damages is such, as the jury, under all the circumstances, taking into view the motives of the parties, as disclosed in evidence, should think proper to allow. We know of no other standard.

The court are of opinion that the defendant’s third prayer was properly rejected, because there was no evidence to sustain it. But, inasmuch as this case is to go back under a procedendo, á majority of the court think that the question of law involved in the- prayer ought to be decided, for sufficient evidence may be adduced at the new tria). One of the judges who sat in this case does not feel himself called upon to pronounce any opinion on the point, whilst the others are of opinion, that the alteration in the banks of the race, if any such was'made, did not destroy the right of easement of the plaintiff; it merely gave a right of action to the defendant, if he sustained any injury from such alteration.

Judgment reversed and procedendo awarded„