Taylor v. Keeler

50 Conn. 346 | Conn. | 1882

Granger, J.

(After stating the facts.) What are we to regard as the gist of this action ? For what injury is the plaintiff claiming compensation in damages? Is it for an injury to his land or to his mill ?

Clearly the land is mentioned only incidentally. No injury to it is alleged. The sole injury set forth in the declaration, so far as we can see, is the injury to the plaintiff’s mill. The facts with regard to this are stated with directness and precision. The allegation is, and there is no other of any injury whatever, that the defendant by his dam wrongfully caused the water of the stream “ to flow back on the said .land and against the said water wheel of said mill of the plaintiff, whereby he prevented the movement and working of said mill for divers days, &c., and deprived the plaintiff of the use and profits of his said mill.” The defendant might properly understand from these allegations that the only claim that he was to meet was that of having injured the plaintiff in the use of his mill. That claim he was prepared to meet and it appears by the finding that he met it successfully. It is found that the water “was not set back far enough to actually reach and affect the working of the grist-mill wheel or machinery.”

But the defendant was not bound to be prepared to meet a claim that the plaintiff had been damaged by the overflowing of any part of the eighteen acres described in the declaration. The declaration gives him no intimation of such a claim. It is an elementary rule of pleading that the plaintiff must, in his declaration, give the defendant fair notice of what he claims, and in an action for consequential damages must state the consequences which he claims to have resulted from the wrongful act charged. Chitty says (Pleading, Vol. I., 255,)—“The declaration must allege all the circumstances necessary for the support of the action and contain a full, regular and methodical statement of the injury which the plaintiff has sustained, with time and place and other circumstances with such precision, certainty and clearness that the defendant, knowing what he is called upon to answer, may be able to plead a direct and unequivocal plea, and that the jury may be enabled to give a complete verdict upon the issue, and that the court consistently with the rules of law may give a certain and distinct verdict upon the premises.” Another reason why such certainty as this rule prescribes is required as to the •declaration and the judgment, is that the defendant may plead the judgment in bar to any subsequent suit for the same injury.

It will be seen by reference to the forms for declarations in actions of this sort, as prepared by Judge Swift (2 Digest, 555,) that the present declaration follows the form there given for a case of “obstructing and flowing water back on the mill of the plaintiff.” On page 556 is found a form for a case of “ flowing the plaintiff’s meadow.” In this form, after alleging ownership, describing the land, and averring that the defendant erected a dam across a certain brook below the land of the plaintiff and caused the water to set back upon and overflow the .plaintiff’s land, it concludes as follows:—“Whereby the grass of the plaintiff growing on said land has been spoiled, of the value of- and said meadow has been made worse and has become miry and almost impassable.” Thus it will be seen that the forms for the two cases are essentially different, and that in the latter case, which is the only one applicable to an injury to the plaintiff’s land by overflowing it, it was an essential part of the form that the damage to the land itself should be averred, and with directness and particularity.

We do not mean to be understood as saying that there can be no recovery of nominal damages where a clear trespass or injury is alleged with no averment of actual damages except in the general ad damnum clause. The court will as a general. rule grant nominal damages for the invasion of the plaintiff’s rights. But here, as we have shown,the plaintiff himself precludes all claim for even nominal damages by making his whole claim, not only expressly but exclusively for damage to his mill. It is on this alone that he counts and for this alone that he sues; and it is only in accordance with his own statement of his case that he must recover for this or for nothing.

The judgment is erroneous and is reversed.

In this opinion the other judges concurred.