29 F. Cas. 934 | U.S. Circuit Court for the District of Maine | 1843
in summing up to the jury, after stating the various facts offered in evidence by the parties, said; The real question between the parties is, whether the water is now flowed back by the defendants upon the plaintiff’s lands and mills, or upon either of them, higher and further than the Knight dam had formerly flowed it back. One means of ascertaining this is to ascertain whether the new dam, now erected on the Knight dam, is higher than the old dam; for if it is, that will, of itself, afford a strong inference, that the water is flowed back higher and further; for water will obey the ordinary operations of the law of nature. Streams do not flow backwards in the ordinary course of things, unless there be some obstruction below to interfere with their usual passage. Another means doubtless is to ascertain, whether, in point of fact, the water does now ordinarily flow backwards higher and further than formerly. Thus, for example, if it now ordinarily does drown or cover lands, or rocks, or banks in the stream, which were not formerly so drowned or covered in the ordinary course of the river; or if the mills of the plaintiff are now subjected to stoppage and obstruction from back water in the ordinary state of the river, which did not formerly take place, that also would furnish grounds, from which the jury might infer, that the present dam was higher than the old Knight dam. But fiowage back, occasioned by extraordinary freshets, or by other distinct causes, in no wise connected with any supposed increased height of the Knight dam, ought not to be allowed to have any influence upon the minds of the jury against the defendants in the present cause.
In respect to the right of the plaintiff to maintain the present suit, it is not indispensable for him to show, that the water is flowed back by the defendants, so as actually to obstruct and stop the operation of his mills. There is evidence for the jury to consider on this point; and if they are of opinion, that such a stoppage and obstruction did exist, by the act of the defendants, they ought to give damages therefor to the plaintiff. On the other hand, if the defendants flowed back the water by increasing the height of the Knight dam beyond that of the old Knight dam, so as to drown or cover a portion of the plaintiff’s land, that also would be a ground for giving him damages therefor. Indeed, the principle of law goes much further; for every riparian proprietor is entitled to have the stream flow in its natural channel, as it has been accustomed to flow, without any obstruction by any mill or riparian proprietor below
In respect to damages, in cases of this sort, where the plaintiff comes to vindicate his right against an injury by wrong-doers, if he establishes his right of action, the jury have a right, if they choose, to give him such damages as will fully indemnify him, beyond what the costs taxed in the cause will reach. In considering what is the proper amount or measure of damages, they are at liberty to take into consideration the necessary expenses of fees to counsel, and other necessary expenses, to which the plaintiff has been put in the progress of the cause, and by the nature of the defence, beyond what he will be indemnified for by the taxable costs. It might otherwise happen, that a plaintiff might be grievously injured, or suffer great pecuniary losses, by his endeavors to vindicate his right against mere wrong-doers. The jury are not, indeed, bound, under such circumstances, positively to include such necessary expenses in the damages. What the court mean to say is, that they are at liberty, if they choose, to include such reasonable compensation in the damages, for such necessary expenses, as they may think were properly and fairly incurred in the vindication of the right of the plaintiff. And with these remarks he left the case to the jury, who found a verdict for the plaintiff, as has been already stated, for S1400.
Band & Preble, for defendants, afterwards filed a motion for a new trial, which was as follows: “And now. after verdict, and before judgment, the defendants move the court, that the verdict of the jury returned in this case, may be set aside, and a new trial granted; because the court instructed the jury, that the question to be considered and decided by them was, whether the dam, erected by the defendants and now standing upon their premises, is or is not higher than the Knight dam: whereas, the jtuy should have been instructed, that the question to be considered and decided by them was, whether the dam, erected by the defendants, -and now standing upon their premises, does or does not cause the water to flow back upon the plaintiff’s mills and mill-wheels, more than the Knight dam did. And also, because the court instructed the jury, that in estimating the damages to which the plaintiff would be entitled (if any), they should allow the plaintiff, in addition to the actual damages sustained by the flowage of his mill-wheels and mills, such further sum as would be sufficient to indemnify him for all expenses incurred by said plaintiff in the prosecution of this suit, including all counsel lees: whereas, the jury should have been instructed, that the plaintiff (if entitled to recover at all), could recover only the damages actually sustained by him in consequence of the flowage of wrater upon his mill-wheels, there being no evidence or pretence that such flowing was done vexatiously, or maliciously, but only under a belief that they were in the lawful exercise of their own right. And also, because the damages given by the verdict of the jury in this case, are unreasonable and excessive, no actual damage having been proved to have been sustained by the plaintiff, or any evidence introduced tending to prove any actual damage so sustained; and there being no evidence or pretence that such flowing was done vexatiously or maliciously, bu! only under a belief that they were in the lawful exercise of their own rights.”
The motion coming on for argument at this term, Fessenden & Deblois, for plaintiff, resisted the motion. They insisted, that the charge of the court upon the first and second points was not correctly stated. As to the first point, they said: The court did not say the only question to be settled and decided by the jury was. “whether the dam erected by the defendants is or is not higher than the Knight dam.” but it called the attention of the jury to the fact, that the defendants claimed to flow back the water of the river, as far as the Knight dam had formerly flowed it back; and that this fact had been admitted by the plaintiffs, and that, as one means of ascertaining, whether "the defendants had flowed back further than they had a right, by virtue of the use of it for twenty year’s, that they would be called on to consider and decide, whether the dam erected by the defendants is or is not higher than the Knight dam.
There is a diminution.'if we may so style it, of the charge ot the judge. He did charge the jury, that they must find that the defendants did cause the water to flow back upon the plaintiff's mills, and mill wheels, and land, more than they had any right to do. and more than the Knight dam did. One mode of ascertaining, whether the
With these general directions, therefore, it was for the jury to decide, whether the new dam was higher than the Knight dam, and the direction was correct. He is sustained by the following authorities: 2 Chit. Pl. 600; Mason v. Hill, 5 Barn. & Adol. 1; Williams v. Morland, 2 Barn. & C. 910; Frankum v. Earl of Falmouth, 6 Car. & P. 529; Wright v. Howard, 1 Sim. & S. 190; Hazard v. Bobinson [Case No. 6,281]; Tyler v. Wilkinson [Id. 14,312]; Webb v. Portland Manuf’g Co. [Id. 17,322]; Blanchard v. Baker, 8 Greenl. 253, 266; 3 Kent, Comm. (3d Ed.) lect. 52, p. 439.
This being the state of the law, we say, that the- judge did right to' charge the jury to examine, whether the new dam was higher than the Knight dam, as one of the modes of ascertaining, whether the defendants flowed back the river more, than by user for twenty years or grant, they had acquired a right to flow back on the land of the plaintiff, as far as they were proved to have flowed it.
As to the second point, they said: The judge did not charge the jury in the words, or to the import, conveyed in the second cause for a new trial. His charge was in substance and effect this: “That the jury had a right, in considering the damage the plaintiff had sustained, to allow such a sum as will remunerate the plaintiff for the expenses incurred by him in protecting and vindicating his rights, and in pursuing his remedy; that the plaintiff had a right to a perfect indemnity for the wrongs and injury he had sustained, and that the expenses, to which he had been put, were legitimate subjects for the consideration of a jury.” But he did not charge the jury, that they might allow the fee of counsel, eo nomine. They added, that they were prepared to vindicate the doctrine stated in the second point, even if such had been the charge to the jury.
But THE COURT said, that the charge had been wholly misconceived, which had been given to the jury, upon the first and second points; and, therefore, upon these points, • the case was not arguable. The charge was. in fact, that, which has been already stated. • •
Rand & Preble then said, that they should confine their argument to the third and last point, that the damages were excessive and unreasonable.
Fessenden & Deblois argued, that the damages allowed were but a reasonable indemnity for the plaintiff, considering the nature of the suit, the protracted character of the controversy, and the necessary expenses incurred to vindicate it. They cited and relied on Boston Manuf'g Co. v. Fisk [Case No. 1,681]; Bracegirdle v. Orford, 2 Maule & S. 77; Carter v. American Ins. Co., 3 Pet. [28 U. S.] 307; Conrad v. Nichols, 4 Pet. [29 U. S.] 309; Bell v. Cunningham, 3 Pet. [28 U. S.] 84; Thurston v. Martin [Case No. 14,018]; Coffin v. Coffin, 4 Mass. 41; Leeman v. Allen, 2 Wils. 160; Huekle v. Money, 2 Wils. 205; Sampson v. Smith, 15 Mass. 367; Boies v. McAllister, 3 Fairf. [12 Me.] 308.
STORY, Circuit Justice. We are of opinion, that the motion for the new trial ought to be overruled. The two first points have been already disposed of. The third point is, as to the damages being excessive. We take the general rule, now established, to be, that a verdict will not be set aside in a case of tort for excessive damages, unless
Motion overruled, and judgment according to verdict.