Blair v. City of Groton

• Decision Date: 01 June 1900
• Citation: 13 S.D. 211,83 N.W. 48
• Parties: WILLIAM BLAIR, Plaintiff and respondent, v. CITY OF GROTON, Defendant and appellant.
• Court: South Dakota Supreme Court

13 S.D. 211

83 N.W. 48

WILLIAM BLAIR, Plaintiff and respondent,

v.

CITY OF GROTON, Defendant and appellant. South Dakota Supreme Court Appeal from Circuit Court, Brown County, SD Hon. A. W. Campbell, Judge Affirmed L. W. Crofoot and K. McKenzie Attorneys for appellant. Opinion filed June 1, 1900

FULLER, P. J.

Plaintiff, the owner of 160 acres of land contiguous to defendant’s corporate boundaries, brought this action to recover damages occasioned during a series of years by the negligence of the defendant in permitting the water from its artesian well to flow upon, submerge, and destroy the usefulness of one-half the entire tract in the manner set forth in his complaint, as follows:

“That the said well was constructed by said defendant for its own use for fire protection, and to obtain a supply of water for said city, and defendant has ever since and during the last six years maintained said well, and permitted the water to flow out of the same and away therefrom. That the defendant, without the plaintiff’s consent, has permitted and allowed said water during the past six years to flow away from said well, across the streets and alleys and other lands within said city, and over and upon the said lands belonging to said plaintiff. That said water has so flowed over and upon the said lands of plaintiff in large quantities for the years 1893, 1894, 1895, 1896, 1897, and 1898, and during the season of each of said years proper for the planting and gro wing of said crops. That said lands of plaintiff were hay and grain lands, and suited to the production of crops, and said water so permitted to flow by defendant has covered during each of said years eighty acres of said lands of said plaintiff, and defendant has during each of said years prevented plaintiff from using eighty acres of said lands, and has rendered eighty acres thereof during each of said years unfit for cultivation, and has deprived plaintiff of the use thereof. That the actual value of the use of said lands for each year of which plaintiff has been so deprived of its use was the sum of one dollar and fifty cents per acre. That during said years the defendant has permitted said water to accumulate and stand on said lands, and the effect thereof has been to kill the natural grass standing on part thereof, and to saturate the soil with said water, and the lands have thereby become and been rendered unproductive and unfit to produce crops and, as plaintiff is informed and believes, said lands will so remain unproductive and useless for cultivation and agriculture for at least five years in the future, and defendant has thereby damaged plaintiff in the further sum of five hundred dollars. That plaintiff has been damaged by the said wrongful act of defendant in the sum of one thousand dollars, for which sum plaintiff demands judgment against defendant, with the costs of this action.”

The answer amounts to a general denial of the foregoing allegations, and the issues thus raised were tried to a jury, resulting in a verdict for plaintiff for $475, and this appeal is from a judgment accordingly entered, together with an order overruling a motion for a new trial.

Immediately prior to the trial, one of the witnesses for respondent, shown to he familiar with the locus in quo, drew what the record discloses to be “a pencil sketch, showing the boundaries of the land in controversy, and the other lands in that vicinity, and also indicating by pencil lines the draws or depressions upon the land in controversy and upon other lands in that vicinity”; and, upon proof that this representation was nearly correct, the same was admitted in evidence, over the objection of appellant’s counsel, who now contends that such action of the court constitutes reversible error. Evidently this sketch was not received as an absolutely correct representation, or as conclusive proof of what it purported to be, but rather for what it was worth as an aid to the jury in understanding the testimony of the witness. Whether a sufficient foundation had been laid for its admission is a preliminary question of fact, to be decided by the judge presiding at the trial, and in the absence of any injury resulting therefrom, his decision is not subject to review. Blair v. Pelham, 118 Mass. 420; Railroad Co. v. Smith, 90 Ala. 25, 8 South, 43; Coal Co. v. Kelly, 156 Ill. 9, 40 N.E. 938; Holliday v. Maddox, 39 Kan. 359, 18 Pac. 299; Griffith v. Rife (Tex. Sup.) 12 S.W. 168. It is very evident that this sketch was not treated as a verity, for the reason that the witness testified that it was not drawn from actual survey, and for the further reason that the members of the jury were in a body permitted to view the premises in controversy, and thus determine from actual observation the probative force of such exhibit,...