38 Mo. App. 98 | Mo. Ct. App. | 1889
This was an action, brought by plaintiff, to recover against the defendant damages, alleged to have been sustained by plaintiff, by reason of the overflow of his land, and injury thereto, claimed by him to have been occasioned by the cutting of a ditch, by defendant, on his, defendant’s, own land, but which diverted the water that flowed down a natural stream, and passed from such ditch upon plaintiff’s land. The allegations of the plaintiff’s petition were all denied by the defendant’s answer, except that _ the defendant owned the land mentioned in the petition as belonging to him.
The plaintiff, to sustain the issue on his part, introduced a number of witnesses, whose testimony tended to prove the following;
That the branch and stream, described in plaintiff’s petition, is, and was, a natural stream, having well-defined banks; said stream being about five miles long, and draining a large scope of country. That said branch, or stream (known as Owl branch), ran through the land of the defendant Glenn, as represented on a map, introduced in evidence (which is copied with the record). And also tending to prove that the plaintiff is, and was, for the time complained of, the owner of, and in possession of, the land described as his, and
The defendant, likewise, introduced a number of witnesses, whose testimony tended to prove that the plaintiff was not injured, or his said land damaged, in any amount, by reason of the making of the ditch and dam complained of, but, on the contrary, his, plaintiff’s, said land was benefited thereby, which evidence, in regard to benefits, as a justification of the alleged wrong complained of, was objected to by plaintiff, and was admitted by the court, in mitigation of damages, only, to which action of the court, in so admitting such evidence, tending to show benefits, in mitigation of damages, only, defendant, at the time, excepted, and, further, tending to prove that no more water from said branch flowed upon the plaintiff’s land, by reason of the making of said ditch and dam, than would have flowed thereon, had said ditch and dam never been made.
The defendant also offered and read in evidence the record of a deed from John Mize to William Mize; the plaintiff, which conveys to plaintiff the land described in his petition.
I. First among the several errors assigned is, that the circuit court erred in limiting the evidence offered by defendant, to the mitigation of damages, alleged to have been sustained by plaintiff. The circuit court, by the third instruction given for the plaintiff, told’ the jury, in effect, that if the ditch complained of caused more water to flow on plaintiff’s land than otherwise would have flowed thereon, from Owl creek, that all evidence tending to show that the ditch was a benefit, instead of a damage, to plaintiff’s land, could not be considered for the purpose of totally defeating plaintiff’s recovery, or as a justification to the defendant in making the ditch, but might be considered in connection with all the evidences in the case in mitigation of damages.
The answers pleaded a general denial of the allegations of the petition, except as to the ownership of defendant’s land. There was no matter of excuse or justification pleaded. .Under the pleadings, the defendant could adduce evidence in mitigation of the damages, but he could not wholly excuse or justify the injury and wrong complained of. The true rule is, that, under a denial, the defendant should be permitted to show no fact that does not go directly to disprove the fact denied. Evidence of facts, which admit the act charged, but which avoid its force or effect, or which discharge the obligation, is inadmissible; of course, facts may be proven, although apparently new matter, which, instead of confessing or avoiding, tend to disprove those alleged by plaintiff. Bliss on Code Plead. 327, 329, 352.
Under the old system by pleading the general issue, everything was open to proof which went to show a
But, even if specially pleaded, would it constitute a complete defense to the plaintiff’s action? Is it any excuse or justification for the disturbance of the rights of another, that the same has resulted in its ultimate effects beneficially to him ? In this case the contention is, that though the ditch was dug in the wrongful manner charged in the petition, yet that as the act, which was wrongful in its commission, has resulted beneficially to the plaintiff, that he should not be heard to complain; this, even showing that one is benefited rather than damaged, is no defense since no man is compelled to have benefits thrust upon him offensively, and in defiance of his right of independent action. If it were, if
The supreme court of this state, in a case very analogous in its salient facts to this case, sustained the action of a trial court in refusing an instruction which declared that if “the plaintiff’s land was benefited, rather than injured, by the ditch in question the verdict should be for the defendant.” Jones v. Hannovan, 55 Mo. 462.
The principle that for the most barren infractions of legal rights nominal damages have been awarded, without reference to whether such infractions have resulted injuriously or beneficially to the plaintiff, is well sustained. State ex rel. v. Rayburn et al., 22 Mo. App. 303; Owen v. O'Rielly, 20 Mo. 603; Brown v. Emmerson, 18 Mo. 103; State ex rel. v. Dunn, 60 Mo. 64.
We therefore think the circuit court did not err in ruling that the evidence of the defendant, tending to show that the plaintiff was benefited by the ditch, could be received only In mitigation of damages. It will be observed that the plaintiff, in the light of the authorities which we have cited, was entitled to recover, if entitled to recover at all, nominal damages. As the jury assessed no actual damages against defendant it becomes wholly unnecessary to examine rules for the admeasurement of damages or cases of that kind.
II. As to the second ground of the defendant’s appeal, it may be remarked that, inasmuch as the damages found were only nominal, the error complained of in the plaintiff’s instructions 1, 3 and 5 was quite harmless. Had actual damages been found by the jury, the objection made by defendant would perhaps not be without force. The plaintiff’s instructions are subject to some just criticism on account of some verbal inaccuracies therein, but no error of substance has been discovered which would justify a reversal of the case on that account. The instructions given, under the pleadings and evidence, very fairly presented the case to the jury. Those refused for the defendant either were not based upon the whole case, singling out particular facts, or were not based on evidence, or were obnoxious to the principles of the law as we have declared them, and hence there was no error in their refusal.
With the concurrence of the other judges, the judgment of the circuit court will be affirmed.