Sewall's Falls Bridge v. Fisk & Norcross, 23 N.H. 171

23 N.H. 171 | Superior Court of New Hampshire | 1851

Eastman, J.

The plaintiffs, by their charter, were empowered to build a bridge where the one destroyed had been erected. This gave them the right to make" the bridge; but in such a manner as not to interfere with the rights of the public to the use of the river. The public had the right to the free navigation of the river for such purposes as it had previously been used ; and they also, as well as the plaintiffs, had an interest in the erection of the bridge, that they might be accommodated in crossing the stream. The plaintiffs and defendants, then, had both of them rights that could be affected by the conduct of each, and this action is brought, not for any ordinary and legal use of the stream, but for injuries occasioned by the' careless and negligent use of it.

Upon the trial of the case, it was in the first place objected, that the corporation had no existence after May 1851, and could not therefore maintain the action. This objection was founded upon a provision of the charter that if the corporation should be destitute of a bridge for the term of two years the charter should become void, coupled with the fact that no bridge had been in existence after May, 1849.

If this proceeding were an information filed against the plaintiffs to procure the forfeiture of their charter, the want of a bridge might, unexplained, be a good cause for vacating the' grant; but the question of forfeiture cannot be enquired into in this collateral way. The grant is from the State, and the proceedings to divest the grantees of their charter must be by the same power that created it; and until that be done by the proper and legitimate action of the State authorities, it is not competent to show any matters affecting the forfeiture o£ the charter as a defence to private actions brought by the plaintiffs. Bear Camp River Co. v. Woodman, 2 Greenl. Rep., 404; Chester Glass Co. v. Dewey, 16 Mass. Rep., 102 ; Rex v. Pasmore 3 Term. Rep., 244; Bank of Niagara v. Johnson, 8 Wend. Rep., 645; People v. Manhattan Co., 9 Wend. Rep., 382; Slee v. Boom 5 Johns. Ch. Rep., 381; Irvine v. Lumberman’s Bank, 2 Watts & Serg. Rep., 190 ; Commonwealth v. Union Ins. Co., 5 Mass. Rep., 230 ; State v. N. H. Turnpike, 15 N. H. Rep., 162; Pierce v. Somersworth, 10 N. H. Rep., 369.

The defendants next excepted to the ruling of the court in-excluding certain evidence offered by them. The plaintiff’®' evidence tended to show that the defendants carelessly and negligantly caused or allowed large quantities of their logs to accumulate against and above the plaintiff’s bridge ; or, in other words, that the injuries complained of were caused by a careless and negligent use of the river. This was the issue; and the defendants having proved in what quantities, and the manner in which they run their logs, proposed further to show that there is a large amount of timber at the head waters of the Merrimack and that it cannot be taken to market, without costing more than its value in market, in any other mode than that which they practised. This evidence was ruled incompetent; and we-think correctly so. It.does not appear that the lumber at the head of the Merrimack was the defendant’s, nor that the owners of it wished to cut and run it to market in the manner in which the business was conducted by the defendants. But even if it had all been theirs, the evidence would be irrelevant, for the prospective extent of their interests and the contemplated magnitude of them operations, could not give them any special privilege to manage their business in a careless and negligent manner so as seriously to affect the rights of others. The defendants were very properly permitted to show the manner in which they actually conducted their business on the river. This applied directly to the issue, and from it the jury could learn whether the business had been discreetly managed, with a due regard to the rights of others, or whether it had been prosecuted in a careless and negligent manner. The mode too in which the injury itself was committed; the particulars and extent of the damage must also have been lai,d before the jury, and these and other pertinent matters, and not the forests at the sources of the Merrimack, must be the legitimate evidence to show whether there was carelesness or not. We cannot regard the evidence offered as having any tendency to negative the allegations in the plaintiff’s writ, or as disproving in any way the plaintiff’s right to recover. The doctrine which is attempted to be established on the authority of Hall v. Richardson, cited by the defendant’s counsel, cannot, we think be legitimately applied to this case.

The defendants also offered to prove the usage and custom hi running logs in the State of Maine, but the court rejected the evidence.' Much that was said in the preceding paragraph applies with equal force to the question of the admissibility of this evidence. It was not material to the point at issue and could have no tendency to aid the jury in arriving at a correct decision of the question before them. What custom and usage may have tolerated or sanctioned in Maine, in the particular matter of the running of logs, could not be held binding here, unless it had been adopted here and become so general as to be known and established. This we do not understand to be pretended. Evidence, in order to be competent, must correspond with the allegations in the pleading and be confined to the point in issue. 1 Greenl. Ev., §§ 50, 51, 52.

The instructions oi the court, in regard to the damages, were correct. The plaintiffs were entitled to recover the actual damages which the defendants had caused them to suffer; and those damages would be the value of the superstructure or so much of it as was carried away and lost to the plaintiffs, and the loss of the tolls during the time, that was reasonably necessary to repair or re-build. The distinction suggested in the argument cannot exist; for if the plaintiffs would be entitled to the costs of the repairs and the tolls lost, in case of a partial destruction, they must be equally entitled to the cost of rebuilding and the loss of tolls in case of a total destruction. If it were not so, a partial destruction and the tolls might amount to more than the loss of the whole bridge, and thus the greater damages be recovered for the less injury. When the court speaks of the value of the bridge, we understand them to mean the value of the superstructure merely ; and not the value of the superstructure and the franchise of taking tolls united. Were the latter true, the argument might hold good.

In addition to the exceptions taken to the rulings and instructions of the court, a motion is also made, in arrest of judgment, for alleged defects in the first count of the declaration.

After trial and verdict for the plaintiff, judgment will not be arrested unless the record shows a clearly defective cause of action. Every intendment is to be made in favor of the declaration, and whatever is implied in or inferrible from the finding of the jury, will be presumed in favor of the verdict. The defects must be substantial and incurable or the judgment will not be arrested. Hence all formal defects and even some which would have been bad on general demurrer, will be cured by the verdict. Such is the undoubted doctrine of the books. Gould’s Pleadings, 496; Warren v. Litchfield, 7 Greenl. Rep., 63; Addington v. Allen, 11 Wendell’s Rep., 375 ; Reed v. Chelmsford, 16 Pick. Rep., 128 ; Crocker v. Whitney, 10 Mass. Rep., 316; Sawyer v. Whittier, 2 N. H. Rep., 315; Emerson v. Lakin, 10 Shepl. Rep., 384; Morey v. Horman, 10 Verm. Rep., 365 ; Miltenberger v. Schlegel, 7 Barr’s Rep., 241; Vaughn v. Gardner, 7 B. Monroe’s Rep., 326; Simpson v. Vaughan, 2 Strobh. Rep., 32. Any other doctrine would often work great hardship and do much injustice. If the general terms are broad enough to comprehend the proof, it should be sufficient; and if enough appears upon the declaration to show that the plaintiff has a good cause of action, all defects in the statement of it should be taken advantage of by demurrer, or they will be regarded as cured by the finding of the jury. Ingersoll v. Jackson, 9 Mass. Rep., 495; Richardson v. Eastman, 12 Mass. Rep., 505; Walpole v. Marlow, 2 N. H. Rep., 385 ; Dobson v. Campbell, 1 Sumner’s Rep., 319 ; Worster v. Canal Bridge, 16 Pick. Rep., 341; Cornelius v. Malloy, 7 Barr’s Rep., 293 ; Cole v. Harman, 8 Sm. & Marshall’s Rep., 562; Porter v. Kepler, 10 Ohio Rep., 127.

The ground for arresting this judgment, as stated in the ease, is “because the mode and nature of the injury is not stated.” The count sets forth in substance that the plaintiffs had a bridge across the river; that the defendants put large quantities of logs into the stream above the bridge, and carelessly and negligently permitted the same to accumulate and dam up the river above and against the bridge ; that they neglected properly to drive the logs and keep them clear of the bridge, and that they were, by the defendants neglect, piled up and lodged against the bridge, by which piling and lodging against the bridge, great damage and injury was caused to the bridge. It will be seen that the allegations are general, and the count might have been' bad upon demurrer; but the statement shows sufficient to indicate a cause of action. There is no vital defect. The very fact that the terms used are general and the statements broad, would make it the more easy for the court to infer, that the particular mode and manner in which the injury happened was shown to the jury, and that the special nature of the damages were proved, especially as no exception comes to us in the case, upon evidence which we may well suppose to have been offered upon these points. We think that the most that can be objected against this count is, that it is a cause of action defectively stated, and not a defective cause.

The exception to the second count is, that it does not state the time of the acts complained of. An inspection of the count however, shows the fifteenth of May, prior to the date of the writ, to be the time stated. It is not done with that definiteness which is sometimes introduced into writs, but is abundantly sufficient after verdict. Time, unless it be matter of essential description in the cause of action, will, after verdict, be presumed to have been proved, and the want of it in the count will not be matter in arrest of judgment. Gould’s Plead., 499 ; Stockton v. Bishop, 4 Howard’s U. S. Rep., 155 ; Marsh v. Blythe, 1 McCord’s Rep., 360; Warne v. Anderson, 7 Wis. Rep., 46; 3 Black. Com., 394 ; 2 Salk., 662; 5 Mod., 287. All óf the exceptions must be overruled and there must be

Judgment on the Verdict.