11 Barb. 368 | N.Y. Sup. Ct. | 1851
By the Court,
The jury have found that the defendant was a wrongdoer in the erection of the dam which caused the injury to the plaintiffs’ mill, and that the title to the premises occupied by the plaintiffs’ mill and machinery had not vested in the state; that the presumption of title in the state which resulted from the map and accompanying documents which were given in evidence, and which by law are made presumptive evidence of such title, (1 R. S. 218, §§ 4 to 7. Laws of 1837, p. 518,) were overcome by the'other evidence in the case. Several questions of some difficulty are presented, upon the rulings and decisions of the justice upon this part of the case. But as we are of the opinion that the measure of damages adopted by the jury under the direction of the court was erroneous, and that a new trial must be granted for that reason, and as the evidence may be materially different upon another trial, or another jury may arrive at very different conclusions upon the same evidence, we do not propose to examine the questions made upon the right of the plaintiffs to recover.
The defendant requested the judge to instruct the jury in respect to the damages, 1st. That the plaintiffs had no right to allow the dam to stand for 21 months and charge the defendant for the damage during that period; that they were only entitled to the expense of abating it and the loss occasioned by its standing still while necessary to abate it; or, 2d. That the
But upon the case before us, a new trial should be granted, for the want of evidence that the damages claimed did necessarily result from the act of the defendant; that it did not result from the negligence of the plaintiffs properly to care for and dispose of their property in time to prevent loss from a depreciation in value. In actions upon contract it is well settled that the party complaining of a breach of the contract can only recover the damages necessarily resulting from such breach, and he can not conduct in such a manner as to make the damages unnecessarily burdensome. (Wilson v. Martin, 1 Den. 602.) The same rule should apply to actions of tort, where there has been no willful injury to the rights of another. The plaintiffs in this action, if they had an opportunity, should have procured their logs to be sawed at other mills, and thus prevented the injury of which they complain; and if they had no opportunity to do so, they should have given some evidence of it upon the trial. In Henry v. Henry, (2 Den. 625,) a different rule was adopted, for the reason that the injury in that case was willful; the court holding that in such a case the injured party was not bound to take any measures to mitigate the injury. If the plaintiffs by using reasonable precautions and such as would ordinarily be employed by a prudent man in the preservation of his property, could have prevented the loss by the injury to the logs, they can not recover for such loss in this action. (Sedgwick on Damages, 98. Loker v. Damon, 17
Pratt, Gridley, Allen and Hubbard, Justices.]
A new trial is granted; costs to abide the event.