27 N.J.L. 457 | N.J. | 1859
Lead Opinion
The action was brought in the court below, hv Byere-on against the Morris Canal and Banking Company, for damages alleged to have been occasioned to the plaintiff’s land by the works of the defendants. Judgment having been rendered for the plaintiff, the cause was removed into this court by writ, of error, issued at the instance of the defendants below.
The first error assigned is, that the plaintiff, upon the trial, was permitted, in the language of the exception, to offer evidence to show the value of the land before the commencement of the action, and its condition at the time of the trial. The ground of objection to the evidence is, that as no damages can bo lawfully recovered for injuries sustained by the plaintiff after the commencement of the suit, evidence of the existence of such injury necessarily tends to prejudice the rights of the defendants by enhancing the damages in the estimation of the jury. The witness, in detailing evidence objected to, after stating the value of the land in 1854, immediately before the commencement of the suit, added— “ there is no difference between its present condition and what it was in 1854.” It is not perceived that the evidence can, by any possibility, have prejudiced the defendants’ rights, and its admission, therefore, can constitute no ground of error. But, whatever the answer might have beeu, the evidence was properly admitted. In every action for a continuing nuisance by obstructing or altering the flow of water, a large portion of the evidence will necessarily have reference to the condition of things at the time of the trial. If a view of the premises be had, (as is usual,) the knowledge of the jury will be limited exclusively to the condition of the premises and to the cause and extent of the injury, as they appear at the time of the view. And they must arrive at a correct estimate of the character and extent of the injury occasioned by the alleged nuisance prior to the commencement of the suit, by comparing the testimony of the witnesses with their own obser
The second error assigned is, that the court overruled evidence offered by the defendants to show that the lands adjoining and below the plaintiff’s are affected by sand below the dam, just as the plaintiff alleges his meadow is affected by the dam. The mere fact that the sand was carried upon the lands of others from causes independent of the dam, had no tendency to prove that the sand carried on the ¡plaintiff’s land was not occasioned by the dam ; nor could the proof of injury sustained by others diminish the damages occasioned by the injury done to the plaintiff. The offer should have gone further, and ¡proposed t'o show that the injury "to the plaintiff’s land did not result front the defendants’ dam. No such offer was made, and the evidence was properly rejected.
The third, error assigned is, that the court overruled evidence offered by the defendants to show the actual-value of the land conveyed by Martin John Ryerson, the grandfather of the ¡plaintiff, to the defendants, and that the $4000, mentioned as the consideration of the said deed, was also for all damages he might afterwards sustain. to other lands from the erection of a daip and embankment, and that such was the agreement at the time.
The fourth error assigned is, that the court instructed the jury that no notice was necessary to be given to the defendants to take down or repair said dam before the bringing of the suit, and that the plaintiff was entitled to recover damages which had accrued before the giving of such notice. The error is sought to be established upon the broad principle that an action cannot be maintained against a defendant, for the continuance of a dam or other nuisance on his land, erected by another, unless he refuse to remove it after request. The doctrine, thus broadly stated, is derived from Penruddock’s case, 5 Coke 100, (40 Eliz.) and receives apparent countenance from oilier more modern authorities, Winsmore v. Greenbank, Willes 583; Brent v. Haddon, Cro. Jac. 555 (17 Jac. 1); 1 Chitty’s Pl. (7th ed.) 101, 423; 2 Ibid. 770, note h; 2 Saund. Pl. & Em. (2d ed) 686. None of these cases, properly considered, support the doctrine contended for. The very reverse of the proposition is law. An action may be maintained against a party who continues a nuisance erected by another without a request to abate it. If the request to abate the nuisance be necessary to maintain the action,
Thus in Moore v. Browne, 3 Dyer 319, b, which was an action on the case for diverting the water of a conduit pipe, it appeared that the husband of the defendant had attached to the main a small pipe with a cock, thereby drawing water at pleasure to serve his house. The wife continued to draw after his death, and the action was ágainst her; and whether she should be adjudged guilty Upon this diversion, because she was not the first who diverted, but her husband was, and the wife only a continuer of the diversion, was doubted. “But (to use the language of the reporter) because the portion of water turned aside had not continual course of running, but Was oftentimes stopped by the cock, and opened again at the pleasure of the wife, toties quoties, that may be called, in her, a new diversion, and so she was found guilty; and so was the opinion of the justices in banc.” The clear principle of the case is, that an act, of hers appropriating the water to her use, thus recognizing and sanctioning
The continuance, (says Mr. Justice Sewall, in delivering the opinion of the Supreme Court of Massachusetts,) and every use of that which is in its erection and use a nuisance, is a new nuisance, for which the party injured has a remedy for his damages. Staple v. Spring, 10 Mass. 74.
In Hughes v. Mung, 3 Har. & McHenry 441, the action was brought against the owner of land, for the diversion of a water-course from the land of the plaintiff to the land of the defendant, made by the father of the defendant when he was owner of the defendant’s farm. On the trial, the plaintiff offered evidence to prove that the stream, as diverted, flows through land claimed by the defendant. That the defendant, since his title to the land was acquired, has used the stream of water in the channel in which it now runs, by watering bis stock therein, by enclosing it within his fences, and occasionally throwing «it out upon his meadow. The court were of opinion, and so directed the jury, that an action will lie for the diversion of the water-course against the person who diverted it, and against any person who keeps up the obstruction which changed the water-course; but ño adven
The whole doctrine, of the necessity of a request to abate a nuisance, is derived,-as has been said, from Penruddock’s case. That was a writ of “ quod permitted prosternere,” brought to abate a nuisance occasioned by (he erection of a house on the defendant’s land, so near the land of the plaintiff, that the water fell from the roof of the defendant’s house upon the curtilage of the house of the plaintiff. Clark, the plaintiff’, purchased .his .premises after the erection of the nuisance. Penruddoek, the defendant, also purchased his premises after the house which occasioned the nuisance had been erected thereon ; so that the action was brought by the feoffee of the premises injured, against the feoffee of the premises which occasioned the injury. The question was, whether the feoffee of the premises injured could maintain the action for the nuisance and wrong done in the life of his feoffor. The objection was, that if the owner of the land to which the injury was done convey the premises, the wrong is remediless, for the feoffee shall take the land in the same plight that it was convoyed to him. The court, however, resolved that the distilling of the water in the time of the feoffee was a new wrong; so that the permission of the wrong, by the feoffor or the feoffee of the premises where the nuisance was erected, to continue to the prejudice of another, shall be punished by the feoffee of the house to whom the injury was occasioned. And if the same shall not be reformed after request made, the quod permitted lieth against the feoffee, and he shall recover damages if he
The earlier case of Beswick v. Cunden, Cro. Eliz. 402, 520, does not conflict with this principle. In that case the dam was erected by the defendant himself, but the property injured was conveyed to the plaintiff after the dam was erected. The action vras brought for the continuance of the nuisance. The argument, as in Penruddock’s case, was, that the nuisance was committed before the plaintiff acquired title, and the tort was extinguished by the feoffment, and nothing new was done since the feoffment to the injury of the plaintiff. And that opinion, upon the argument, was entertained by a part of the court. But subsequently all the justices agreed that the action was well brought. But the case being again argued, the court held that the action could not be maintained, on the ground that there was no offence done by the defendant, for he did not do anything; and therein
The same distinction is very clearly stated in 2 Sound. Pl. & Ev. 686. “Though, in torts, the assignee of an estate is not liable for an injury committed before he came to the estate, yet, if he continue a nuisance, he will be liable for such continuance. And every occupier is liable for the continuance of the nuisance on his land, though erected by another, if he refuse to remove it after notice.”' In other words, the defendant is always liable if he continue a nuisance erected by another; and if he suffer it to remain on his land after a request to remove it, that is, in law, a continuance of the nuisance by him. The necessity of the request to abate the nuisance is not founded on the principle of bringing home to the defendant a knowledge that the act done'operates as a nuisance. The doctrine of the scienter does not apply. A wrongful act is equally a tort whether the defendant knows or was ignorant of its ‘injurious effects. Nor is it necessary to charge the defendant with a malicious intent, for that is not the essence of the wrong. The only principle upon which the request is essential, is to bring home to the defendant a voluntary continuance, and consequent adoption,- of the act .which constitutes the nuisance.
The case of Pierson v. Glean, 2 Green 36, seems to go further, and maintain the principle that the party upon whose land a dam is erected by another, which overflows the land of an. adjoining proprietor, is not liable for the continuance of such nuisance before a request to abate it; although he appropriate the dam to his own use, and thus
But, admitting the authority of Pierson v. Glean in its broadest, extent, the principle extends only to the case of a nuisance created by a wrongful act done or committed, not to a mere neglect of duty. The complaint here is, not that tlie defendants wrongfully maintained the dam, but that they neglected to maintain and keep in repair the guard-hank erected to secure the plaintiff’s land from injury resulting from the erection of the dam. If it was the defendants’ duty to maintain and keep in repair the guard-bank, no notice can be necessary to sustain an action for damages resulting from neglect of such duty. This brings ns to the four remaining errors assigned by the defendants, which involve tlie obligations of the defendants in regard to the repair of the embankment, and the correctness of the judge’s instructions upon that point.
The exceptions to this charge are founded either upon isolated expressions, or upon a misapprehension of its fair scope and meaning. It does not treat the dam as a' nui
The charge, as delivered, covered the whole ground of legal controversy in the cause, and there was therefore no error in the refusal of the court to charge as further requested by the defendants.
The judgment should be affirmed.
Justices Ogden and Vredenburgh concurred.
Dissenting Opinion
(dissenting.) This suit was brought by the plaintiff to recover of the defendants for damages done to his lands, by the erection, continuance and imperfect condition of certain dams and embankment across or along Pomplon river. The works were erected in the construction of a feeder, or branch of their canal. The plaintiff became the owner of all the lands in question, as well those claimed to be injured as those covered by
The plaintiff, after having shown his title, and offered a number of witnesses to prove the damages done to his adjoining lands, by soakage, overflow, washing the deposit of sand and gravel, &c., caused, as was alleged, by the erection and breaches in said dams and embankment, rested his cause; and the defendants, on their part, offered to prove, among other things, the actual value of the lands conveyed by the plaintiff to the defendants, at the time of the conveyance, and that the consideration of §1000, mentioned in the deed, was not to pay for the lands conveyed merely, but was also intended to cover over and pay for, in advance, all damages which the plaintiff might sustain to his other lands from the erection of the dams and embankment in question, and that such was the agreement of the parties at the time. To the admission of this evidence the plaintiff objected. The court sustained the objection, and refused to admit the evidence. To this decision of the court the defendants excepted, and it is now before us on the bill of exceptions prayed and allowed.
In this decision I think the court erred. If the defendants could have proved distinctly what they offered to prove, it should have operated as a perfect defence, and should have prevented such a verdict as was rendered; and, from the offer of the evidence, and its rejection by the court, we are bound to assume that such evidence existed at the time, and would have been exhibited to the court and jury, if permission had been given.
The reasons given for the rejection of this evidence are—
■ 2. It is insisted that the evidence offered was to prove the purchase and existence of an easement, which can only be proved by deed. It is conceded that an easement can
But suppose the evidence offered is to be construed into a parol agreement for an easement—the right to overflow the plaintiff’s land—does it, follow, where the contract has been so far performed that the purchaser has paid the whole of the purchase money, and the grantor has received it, and has it in his pocket, that he can keep it (here, and at the same time set up the statute of frauds against his adversary, ami hold the agreement to be void because not in writing? Can he receive and retain the
If these defendants had themselves instituted proceedings to enforce a mere parol agreement for an easement, which had not in auy part of it been performed, the objection would be well taken; but where the contract, verbal though it be, has been really performed in all its essential features by both parties, by (he payment of the money by the one, and the receipt of it by the other, the same rule does not prevail, but the contract under such circumstances is just as yalid as if it were in writing, and just as proper to be received in evidence, and especially so, when it is absolutely necessary to prevent injustice that it should be so received.
It is not difficult to imagine, from the evidence in the case, the existence of the state of things offered to be proved by the defendants. The value of the lands in the immediate vicinity of those described in the deed are variously estimated by the witnesses of the plaintiffs, at from $40 to $100 per acre, an average per acre of about $75, while those conveyed by the deed, according to the consideration mentioned, brought nearly $180 per acre. That the $4000, therefore, mentioned in the deed covered something else than the mere land conveyed, is quite possible;' at all events the defendants asked permission to prove that it was so, and that it covered the same damages now sued for. This was denied them, and the result is, that they have them to pay over again, if this verdict and judgment are to stand. This is clearly erroneous, and the judgment should be reversed for this reason.
“ You will therefore confine your attention to injuries received since October, 1844, and inquire next, whether the injuries were greater than would have occurred had the river been in its natural state without the dams and embankment. This excess of injury is all the plaintiff can recover for.”
I cannot concur in this view of the case. It does not appear to me that the test for ascertaining the damages, as stated by the judge, is the true one. When the plaintiff conveyed the lands to the defendants, the dams and embankment were finished, and already on them. Both parties must have taken into consideration their existence and future effects; and so long as they remained in their then condition, the defendants could not be responsible to the plaintiff for damages produced by them, but which would not have occurred if the river had remained in its original condition. The plaintiff’s deed precludes him from making such a claim. The defendants were bound to keep tiie dam and embankment in as good condition as they then were; and if they failed to do so, either from alterations, negligence, or ordinary accidents, and in consequence of such failure the plaintiff sustained damages, the proper measure of damages would have been the difference, between the injury thus produced, and what it would have been had the dams ami embankment remained as they were at the time of the conveyance. When, therefore, the judge instructed the jury that the measure of damages by which their verdict was to be governed was the difference between the injury actually done, and what it would have been if the dams and embankment had never been erected, he committed an error which necessarily misled the jury, and which I am bound to suppose led to an erroneous verdict.
It was suggested that the judge, in another part of bis charge, has taken a different view of this part of the case.
The language embraces a distinct paragraph in the charge. It seems to have been deliberately written and delivered to the jury, and as it appears to be the final conclusion of the judge’s views on that part of the case—for he does not again recur to it—and the furnishing lo the jury of a definite test' or standard by which they were to ascertain the amount of damages done, it seems difficult to suppose that the jury were not influenced by it. To suppose they were not, is to suppose that a jury would disregard the instruction of the court in a matter of Jaw—an idea that cannot be entertained.
There are other exceptions taken and urged, but as their decision is not necessary to a determination of the case, I have not deemed it material to consider them. I think, therefore, that the judgment should be reversed.
Judgment affirmed.