Baker v. Scofield

• Citation: 58 Ga. 182
• Parties: Emily R. Baker et al., plaintiffs in err0r. v. Bouver Scofield, defendant in error.
• Decision Date: 31 January 1877
• Court: Georgia Supreme Court

58 Ga. 182

Emily R. Baker et al., plaintiffs in err0r. v. Bouver Scofield, defendant in error.

Supreme Court of the State of Georgia

(Atlanta, January Term, 1877.)

Municipal Corporations. Evidence. Presumptions. Damages. New Trial. Before Judge McCutchen. Bartow Superior Court. July Term, 1876.

Emily R. Baker and Caleb Tompkins brought case against Boliver Scofield for damages caused by the overflow of two lots, the property of plaintiffs, such overflow being the result of the construction of a ditch by the defendant, by which he sought to drain his lands. The damages were laid at *$2,500.00. The defendant pleaded not guilty. The jury found for the plaintiffs $50.00, with costs of suit. The plaintiffs moved for a new trial upon the following, among other, grounds:

1. Because the amount of damages found by the jury is inadequate.

2. Because the court erred in excluding the testimony of James D. Wilkerson, to the effect that the defendant endeavored to induce the city council of Cartersville to cut the ditch, on Forest street, so as to drain the ponds and lands, but the council refused; that he afterwards procured authority from said council to cut the ditch himself, provided he became responsible for all damages that might ensue therefrom.

It was insisted that such evidence was admissible, as it was not shown that there was any writing in regard to the action of the city council touching the same.

The evidence showed that the action was commenced on June 9th, 1875; that plaintiffs owned two lots adjoining each other, on both of which there were houses and outhouses; that plaintiff? resided in one and rented the other; that the residence lot was worth $2,000.00, and the other $1,500.00; that defendant, who owned adjoining lands, for the purpose of draining the same, and also a pond on the other side of the street, in 1872 or 1873, constructed a ditch which terminated at the dividing fence between plaintiffs' and defendant's land; that this ditch, in wetweather, precipitated a large volume of water on plaintiffs\' land, which materially injured the residence lot, and rendered valueless the other; that the basement of the rented house would be filled with water to the depth, sometimes, of six inches; that all vegetables and flowers, which were planted, would be destroyed; that plaintiffs protested against the construction of the ditch at the time it was being dug; that this large volume of water was thus diverted from the channels through which it would...