McTavish v. Carroll

17 Md. 1 | Md. | 1861

Le Grand, C. Jm

delivered the opinion of this court.

This case is before this court for the third time. Tins former decisions in regard to it may be found in 7 Md. Rep., 352, and in 13 Md. Rep., 429. Et is an action on the caso for obstructing a road running from the mill of the appellee to his mill-dam, which dam, and the portions of the road obstructed, are on the land of the appellant. The particular damage alleged in the declaration, as resulting to the plaintiff from the obstruction placed in the bod and across the road, is thus described: “Whereby the said mill became, and was, during all the 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 the water could not flow through it from the same dam to the said mill, wherefore the plaintiff'lost all benefit and profit, which otherwise he would have had and made from the working of the said mill, and the custom and trade thereof, and the use of the same for grinding his own grain, and was, therefore, at great expense, obliged to carry it to other mills, that is to say, at the county aforesaid, whereby the said plaintiff saith he hath damage,” &c.

In the report of the first decision of this court in this case, the kind, extent and nature of the easement to which the plaintiff is entitled over the land of the defendant, are distinctly laid down. And, in the second decision, the kind of evidence on the question of special damage which is admissible, is pointed out.

Damages are claimed, because of the alleged obstructions, from the 27th day of August 1852.

After giving evidence of the titles under which the parties respectively claimed, the plaintiff offered to prove that the plaintiff 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. The defendant objected to the admissibility of this evidence, but the court overruled the objection and the defendant excepted.

We think the court properly overruled the objection to the admissibility of the testimony. It clearly related to the damnge alleged. Had the declaration in the case under consideration, been the same as that in the one reported in 13 Maryland, under the decision in that case it would have been inadmissible; but it is not, but broader and much more comprehensive in its specification of damage.

The circuit court must also be sustained on the second ex ception. The deposition of the witness Cecil, not being in the record, this court cannot be informed of its contents, and must, therefore, assume that it, was properly admitted in evidence.

The plaintiff'submitted a prayer which was granted, and the defendant another which was refused: to tiie granting of the one and the refusal of the other, the defendant excepted, and this constitutes the third exception.

Under the decision in 7 Maryland, the plainiiiPs prayer is clearly error. It is due to the learned judge who granted it to say, that his ruling was before the case in 7 Maryland was made known to him. We attach no importance to the use of the words, “in a reasonable enjoyment and use of said bank,” inasmuch as we regard such an use as the kind to which the plaintiff was entitled. In the decision in 7 Maryland, it was held, that to enable the plaintiff to maintain his action, it was incumbent upon him to show, that the obstruction of which he complained was a material one. If, therefore, it was of a character not to interfere with the reasonable enjojmient of the plaintiff of the use of the bank, it could not be a material obstruction to such use. In the connection in which they are used, the words must be taken as meaning the same thing. The error in the prayer, if the jury should believe the evidence of the defendant, consists in the fact, that the prayer authorises a recovery on the part of the plaintiff for the time subsequent to the removal of the obstruction, or rather its modification, so as fo render it not a material one within the meaning of this court in 7 Maryland, 366. It was there said, “the plaintiff was not entitled to a verdict, if the jury believed the truth of the defendant’s evidence in regard to the manner in which the road had been used, and in reference to the nature, character and structure of the obslructions, and the willingness and readiness of the defendant to have the obstructions removed, whenever the plaintiff had occasion to repair the dam and race, and that the plaintiff was informed of such readiness and willingness, and that he or his agents might remove them, if he or they thought proper to do so; which obstructions were so constructed as to be easily removed.”

(Decided February 20th, 1861.)

We are of the opinion the court improperly rejected the defendant’s prayer. It merely denies the right of the plaintiff, after the 29th of July 1852, to recover damages for any obstruction. If the jury believed the evidence offered by the defendant as to the character of the fence, and as to the notice of the same given to the plaintiff, and the willingness of the defendant to remove the fence whenever he should be requested to do so, then the plaintiff was not entitled to recover for any alleged damage accruing after the 29th of July 1852, the time when the purpose of the defendant was communicated to the plaintiff.

Judgment reversed and procedendo awarded.