38 W. Va. 558 | W. Va. | 1893
Edward W. Miller instituted a suit in the Circuit Court of Jefferson county to recover damages for permanent injury done to his mills and water power on the Shenandoah river by the erection and maintenance of a dam and gates by the Shenandoah Pulp Company, and on the 10th day of December, 1892, recovered judgment for the sum of three thousand seven hundred and fifty dollars.
The defendant obtained a writ of error to this Court, and insists that the Circuit Court erred: (1) In not arresting the judgment and granting a new trial. (2) In not permitting the witness W. L. Black, for the purpose of showing that the use of the head gates complained of in the declaration were necessary and essential to protect the defendant’s property and that of other riparian owners below the dam, to answer the following questions, viz: “AYlmt would bo the effect in times of a freshet in the Shenandoah river upon the mill-property of the defendant, and the property of other riparian proprietors below, without the use of these head gates at the dam?” (3) In refusing to give the following instructions :
“Instruction No. 2. The court further instructs the jury that if they believe, from the evidence, that the defendant' (the Pulp Co.) could not, without liability to injure itself and other riparian proprietors below, use the waters gathered by said dam without the building of the head gates mentioned in the declaration, and further believe that without said head gates the defendant could 'not reasonably enjoy his rights under the said Ktrider deed, then the putting in of said head gates are an incident to the right to raise and extend the said dam, and they must find for the defendant upon the question of damages occasioned by said head gates.”
The defendant further insists that the court below erred in giving the following instruction for the plaintiff:
“If the jury believe from the evidence, that the defendant has, in the manner alleged in the declaration, unlawfully injured the property of the plaintiff, and that such damage and injury is of a permanent character, and affects the value of plaintiff’s property, then they will find for the plaintiff a sufficient, amount as will be a full compensation for such permanent injury.”
(4). The defendant also insists that the court below erred in not setting aside the verdict as contrary to the law and evidence.
The issue was joined on the plea of not guilty.
“That the said John Strider, and Sarah, his wife, for'and in consideration of the sum of two thousand six hundred dollars, lawful money of the United States, to them in haiid paid by the said United States of America (through the lion. Lewis Cass, secretary of war) at and before the enseal-ing and delivery thereof, the receipt whereof is hereby acknowledged, have granted, bargained, and sold, aliened, enfeoffed, released, and confirmed, and by these presents do grant, bargain, and sell, alien, enfeoff, release, and confirm unto the United States of America and assigns forever, al{ the right, title, interest, claim, and demand whatsoever of the said John Strider, and Sarah, his wife, of, in, and to the use and privilege of the waters of the Shenandoah river between the mills of the said Strider, called the ‘Guelph Mills,' and the public works belonging to the United States on said river below, the fall in the river from the said mills to the termination of the land of said Strider being two feet three inches, commencing two feet five inches below the top of an iron bar now inserted in a rock situated in the tail race of the mill of said Strider, said bar being twenty three feet six inches distant from the south.corner of said mill. The said John Strider, and Sarah, his wife, for the consideration before mentioned, grant, bargain, and sell unto* the United States of America the . privilege of completing and-perfecting the dams now extending partly across the Shenaudoah river above and nearly opposite the said Guelph mills, so as to increase the supply of water to
The first grant is “to the use and privilege of the waters of the Shenandoah river between the mills of said Stridor, called the ‘Guelph Mills,’ aiid the public works belonging to the United States on said river below, the fall in the river from the said mills to the termination of the land of said Strider being two feet three inches, commencing two feet five inches below the top of an iron bar now inserted in a
This point, so carefully fixed, has not been ascertained in the evidence ; and the defendant insists that it is destroyed as a boundary point by the after clauses of the deed. While we can not agree with his ingenious argument on this question, yet, as the evidence fails to disclose the ascertainment of this iron bar, its actual location can have little to do with the determiuatian of this case. ,
The next grant to the United States is “the privilege of completing and perfecting the dams now extending partly across the Shenandoah river above and nearly opposite the said Gulepli mills, so as to increase the supply of water to any extent passing down the canal that leads to the rifle factory.” This clause must ho construed so as not only to include the one dam nearly opposite the Guelph mills, but also the dams above the mills, all of which the United States were granted the privilege of completing and perfecting, so as to increase the supply of water to any extent passing down the canal that leads to the rifle factory. It was by a combination of all these dams the United States were to-have the privilege of turning all the wraters down the canal, and not by the dam opposite the Guelph mills alone, as is mistakenly argued by counsel.
Next, it is granted “the privilege of increasing the width and depth of the canal extending from the dams last mentioned (that is, this combination of dams) past the mills of said Strider to the rifle factory;” that is, the whole length of Strider’s land, so as to convey any increased volume of water needed for the works.
Lastly, the United States are granted “the privilege of erecting a dam or dams partly or entirely across the Shenandoah river at any point or points below the mills of said Stridor, the height of which, however, shall not be more than eight inches above the top of an iron bar now inserted in a rock situated near the upper end of the island on which the rifle factory is located.” This last point is not shown in evidence, but it is certainly safe to presume that the object was to pirevent the erection of a dam so high as to cause the water to flow back on Strider’s mills. Such would be the natural inference until at least some other reasonable motive or purpose is disclosed. But this, like the other iron bar referred to, being unascertained, can have but little weight in the decision of this case.
To recapitulate. There áre three grants as to dams : (1) The government is authorized to complete and perfect the dam opposite, and the dam or dams above, Strider’s mills, so as to increase the supply of water to any extent passing down the canal that leads to the rifle factory; (2) also, in addition to completing and perfecting, the government is authorized to increase and extend the dam or dams above the mills; (8) to erect now dams across the river below Strider’s mills, the height of which is limited.
The defendant insists that the verdict of the jury as to the amount found is not sustained by any reasonable view of the evidence, and refers to Black v. Thomas, 21 W. Va. 709; Hatfield v. Workman, 35 W. Va. 578 (14 S. E. Rep. 153) Wandling v. Straw, 25 W. Va. 692.
The plaintiff’s title was sufficiently established for the purpose in i.-sue. Not having been attacked in any manner in the lower court, proof on his part that he was the owner and in possession of th,e property was sufficient; and any technical questions of title will be presumed to have been waived, and will not be permitted to be raised for the first time in this Court. The jury are the solo judges of the amount of the damages inflicted, and, unless their finding is plainly unsnstained by the evidence, such finding will not be disturbed. The references of the defendant sustain this proposition. The evidence in this case shows that the fall in the river from Bull’s falls, three fourths of a mile above, is six feet to Miller’s mills ; that the present dam and head gates have entirely neutralized this fall, and the water is backed up over the mil].
'The plaintiff, in his evidence, states the damage at about ten thousand dollars, one third of the value of the property, in his estimation. ITis son Francis states ihe damage to be from ten thousand dollars to fifteen thousand dollars. The opinions of no other witnesses are given as to the amount of damages, except, to say it is considerable. The defendant introduces no evidence to contradict these opinions, nor to establish the market value of the properly, but relies entirely on its adverse title under the Stride!' deed to the United States. It. is the settled laiv of this statu that the opinions of witnesses are admissible as to the amount of damage done in cases of this character, to enable the jury to arrive at a just verdict; and, while the jury a-re not bound by these opinions, they have the right to give them such weight as, taken together with the other evidence, is justifiable. The jury might have found a much larger verdict, and still have been sustained by the evidence. The instruction given for the plaintiff states the law correctly, and was .properly given. Railroad Co. v. Foreman, 24 W. Va. 662; Hargreaves v. Kimberly, 26 W. Va. 788.
There was no error committed against the defendant in refusing to allow' the witness Black to answer the question propounded to him in regard to the head-gates. It could make no difference to plaintiff’ how much the defendant-damaged its own property or that of other riparian owners. His propeity could not be taken unlawfully to avoid such damage w itlmut just compensation. The establishing this fact wou’d not have benefitted the defendant’s case, and it might have increased the moral obligation at least oil the part of the defendant, to pay Miller for his
Our conclusion, therefore, is that there is no error in the judgment of the Circuit Court; and it is affirmed with costs and damages according to law.