Bacheller v. Pinkham

• Decision Date: 06 June 1878
• Citation: 68 Me. 253
• Parties: BENJAMIN BACHELLER v. CHARLES V. PINKHAM et al.
• Court: Maine Supreme Court

68 Me. 253

BENJAMIN BACHELLER v. CHARLES V. PINKHAM et al.

Supreme Judicial Court of Maine.

June 6, 1878

ON EXCEPTIONS AND MOTION of plaintiff, to set aside the verdict which was for the defendants.

TRESPASS for breaking and entering two closes of the plaintiff, in Chesterville, October 11, 1871, one a mill privilege on Stony brook, the other a clover patch near by, set out in two counts.

The defense was a justification of the acts done by the defendants, the one as a town officer, (selectman) the other as a servant of the town, in repairing a bridge, part of the public highway, legally located in 1802; and as to the second count, a permission to enter the plaintiff's pasture for the purpose of procuring stone to repair the bridge, and a denial that they, or any one by their authority or direction trespassed upon the clover patch.

The reply was that the bridge was not built on the location, and a claim that the town were limited to a width by user, and that the defendants had widened it two feet, and, in so doing, had injured the plaintiff's dam and flume; and that as to the second count, the defendants having given Smith the general direction to haul the stones from the plaintiff's pasture, as a matter of fact, they improperly gave him the special direction to haul them across the clover patch; and even if they did not, yet, as matter of law, they were liable, because of the general order and direction.

The case had been before tried with a disagreement, and the evidence at the final trial was voluminous and conflicting. The bill of exceptions would cover five printed pages of this size, made up of extracts from the charge, under one general exception.

P. H. Stubbs, with whom was E. F. Pillsbury, for the plaintiff.

S. Belcher, with whom was H. L. Whitcomb, for the defendants.

LIBBEY J.

This case comes before us on exceptions and motion to set aside the verdict as against evidence.

The exceptions recite the most of the charge of the judge to the jury, to which exception is taken in gross. This court has held that exceptions taken in this manner cannot be sustained unless all the legal propositions contained in the charge, or the portion excepted to, are erroneous. Macintosh v. Bartlett, 67 Me. 130. Harriman v. Sanger, 67 Id. 442.

It is not claimed that all the legal propositions contained in that part of the charge recited in the exceptions are erroneous. For this reason the exceptions must be overruled.

But on a careful examination of the portions of the charge to which our attention is called by the learned counsel for the plaintiff, we see no error. The rules of...