116 Ga. 431 | Ga. | 1902
The defendant in the court below, who is the plaintiff in error here, claimed a prescriptive right to maintain a mill-dam. attached to the’land claimed by the plaintiff. The plaintiff obtained a verdict and judgment perpetually enjoining the defendant from maintaining his dam at that place, and this bill of exceptions is filed to the judgment of the court below overruling the defendant’s motion for a new trial.
Several objections to the admission of evidence,.made in the motion for a new trial, can not be considered by this court, because the rule of practice indicated' in the first headnote has not been observed. It is important that the motion for new trial itself should show in substance the document objected to, and that it should not refer the court to a brief of evidence for the purpose of ascertaining the contents or effect of the document. It is particularly necessary that a motion should state what the objections to the admissibility of evidence were, and that these objections were presented to the trial judge.
We need not deal more specifically than we have done in the headnotes with what we conceive to be material errors in the charge of the court. As said by this court in the case of Baker v. McGuire, 53 Ga. 247: “The rule seems equally well settled that the capacity of the dam from its height is the measure of the easement. . . . He [referring to the mill-owner] has a right to repair his dam and build a better, though not a higher one.” See also Washburn on Easements, top p. 152. Under the charge of the court, in order to sustain the defendant’s defense, it would have been necessary for the jury to find that the height of the dam had never at any time varied, — become even less than that claimed by the defendant. We do not think, after a careful reading of the record, that the general charge cured the defects pointed out in the headnotes and complained of in the motion for a new trial.
Judgment reversed.