Bonner v. Welborn

• Decision Date: 31 August 1849
• Docket Number: N0. 55.
• Citation: 7 Ga. 296
• Parties: Robert Bonner, plaintiff in error. vs. Alfred Welborn, defendant.
• Court: Georgia Supreme Court

7 Ga. 296

Robert Bonner, plaintiff in error. vs. Alfred Welborn, defendant.

N0. 55.

Supreme Court of the State of Georgia

AUGUST TERM, 1849.

Assumpsit, in Meriwether Superior Court. Tried before Judge Hill, February Term, 1849.

In 1843, Alfred Welborn erected a mill-dam on his own land, adjoining the property known as the Meriwether Warm Springs, then the property of Seymour E. Bonner. In 1845, Seymour B. Bonner sold and conveyed this property to the plaintiff in error, Robert Bonner.

In 1847, Robert Bonner brought an action against Alfred Welborn, alleging that he had been damaged $20,000,

"For that, whereas your petitioner, before and at the time of the committing of the grievances by the said Welborn, hereinafter mentioned, was and from thence hitherto has been and still is lawfully possessed of a certain tract of land, (describing it) containing six hundred acres, more or less, known as the Warm Springs,, in Meriwether county; that upon and issuing out of said premises is a bold spring of warm water, possessing valuable mineral qualities, and celebrated for its cures of very many diseases to which the human family are subject; attached thereto are extensive and commodious baths, together with a large hotel and a number of small buildings, all of which have been erected and fitted up, at great expense, for the accommodation of the crowd of visitors, who, for the last ten years, next before the committing of the grievances hereinafter mentioned, resorted to said springs for both comfort and health; the same, before the committing of said grievances, being remarkable for its pure, healthy and salubrious atmosphere, and the uninterrupted and extraordinary health of its inhabitants and visitors, in consequence of which a great number of persons were induced, annually, to visit the same, and spend the summer and fall months. Your petitioner, at the time of committing said grievances, pursued, exercised and carried on and had done so a long time previous thereto, the business of furnishing said visitors with houses, boarding, lodging, at-tention, &c, and for so doing, he received as a compensation, annually, for several years, to wit: for the space of four years, before the committing of said grievances, the sum of twenty thousand dollars, one-half of which was net, and a profit, after paving the expenses of the establishment; thus rendering the possession and enjoyment of the premises of the yearly value of ten thousand dollars. By reason thereof, before and at the time of the committing of said grievances, your petitioner of right, ought to have used and enjoyed, and still of right, ought to have and enjoy the benefit and advantage of said springs, as a popular and fashionable watering place, and the custom and patronage of the visitors thereto, and the profits arising therefrom. Yet, the said Alfred Welborn, well knowing the premises, but contriving, and wrongfully and unjustly intending to injure and prejudice your petitioner in this respect, and wholly deprive him of his said business, and destroy the use, benefit and advantage of said situation, and to deter and prevent visitors from resorting to the same, and thus to hinder and prevent your petitioner from receiving the benefit and advantage of entertaining said visitors, and the use and benefit of the premises so possessed as aforesaid by him in so ample and beneficial a manner as he had done theretofore, and of right ought to have done, and to injure him in his said business, which he had for a long time before, and still doth exercise, and carry on on said premises, which he, your petitioner, was so possessed of, with the appurtenances as aforesaid, and so exercised and carried on his said business thereon as aforesaid, to wit: on -the 1st day of November, 1843, and on divers Other days and times, between that time and the commencement of this suit, the said Alfred Welborn wrongfully and unjustly erected a mill-dam in a short distance, to wit: within the space of four hundred yards of said springs, hotel and houses, of which your petitioner was possessed as aforesaid; and then and thereby caused the water to cease to flow, but to stagnate and to overflow the banks of the creek, and fill the low land, by which a large quantity of timber was and is destroyed, and in a state of decay, in consequence of which, the atmosphere at and around said premises, springs and houses, before that time so pure and healthy, has become and rendered impure and unhealthy, and said premises exceedingly unhealthy, and wholly and totally unfit for a summer residence, so much so, as to deter and prevent the public, during the last season, to wit: from thefirst day of June last (1846) to the first day of last November, from visiting said springs, and remaining there as the guests of your petitioner, as they had heretofore done, and would have done, but for the erection of and keeping up said mill-dam. And your petitioner, by means and by reason thereof, has been and was prevented, from the first day of June last, to the said first day of November, pursuing, following and carrying on his said business, in so large, extensive and profitable a manner as he might and otherwise would have done; but has been thereby, for and during the time last aforesaid, derprived of the use and enjoyment of his said possessions, and of all the profits, benefits, gains and advantages, which he otherwise might and would have made by carrying on his said business thereon, as aforesaid, to the damage of your petitioner, the aforesaid sum of twenty thousand dollars."

The second count was similar to the first, the petitioner alleging a continuance of the nuisance, and that he exercised "the business of entertaining, boarding and lodging the visitors at said springs."

An amended count was similar in all its allegations, but set out at length the names of the visitors who were deterred by the wrongful act of the defendant, from visiting the springs. This count farther alleged, that by means thereof, the petitioner and his family were made sick and diseased, and thereby incurred great expense, trouble and bodily pain.

A second amended count was in all its allegations, similar to the first, except that it alleged the plaintiff to be the owner of the premises, and that many of his guests, by reason of the unhealthiness of the springs, left before the season was over; besides, many others, whose names are mentioned, were deterred from coming altogether.

Upon the trial, at February Term, 1849, the testimony of the book-keeper and the books of plaintiff were offered in evidence, as well as the testimony of sundry persons who were in the habit of visiting the springs, for the purpose of showing the amounts of receipts for the year 1845 and those of 1846, and to show that the Cause of the large decrease ($11,000) was the sickness and apprehension of sickness arising from the mill-dam and pond of defendant.

The testimony was objected to by defendant, on the ground that the plaintiff had not shown that he had applied for and ob-tained a license to keep a tavern or public house, as required by the Statutes of Georgia.

The Court sustained the objection and plaintiff excepted.

Plaintiff then offered in evidence the records of the Inferior Court of Meriwether county, to show that license to retail spirituous liquors had been granted him, and that he had complied with all the requisitions of the law, to obtain such retail license.

The Court rejected the evidence, and plaintiff excepted.

Much testimony was introduced to show the commencement and character of the sickness at the springs, and that it was produced by the pond of defendant. A brief of it here is unnecessary. No request by the plaintiff to defendant to abate the nuisance was proven.

The Court charged the Jury, that the erection of the mill-pond by defendant, on his own land, being a lawful act, it was necessary that the plaintiff should request the defendant to abate it, or give notice to that effect, before he could maintain this action; and the mill-dam, as shown by the proof, having been erected before the plaintiff purchased the land, or went into possession of the springs, he could not maintain this action for its erection or continuance, until be had requested the defendant to lake it down.

To all of which charge, defendant excepted, and upon these several exceptions, error was assigned.

W. Dougherty, for plaint ill' in error, cited—

3 Bac. Abr. "Inns." 5 Ohio, 324. 5 Modern, 427. 12 Modern, 254.

Penruddock's case, Coke's Rep. 176. 10 Mass. 77. Wilkes' Rep. 583. 33 Eng. Com. Law Rep. 315.

O. Warned, for defendant, cited—

8 Term, 303. 2 Leigh, N. S. 13i)5. 7 Eng. Com. Law, 121. 1 Bos. & Pul. 264. 1 Maule & Sel. 593. Carthew. 252. 17 Mass. Rep. 258. 18 Eng. C. L. 304. 6 Hill, X. Y. 524.

2 Greenleaf's Ev. 385. 1 Stewart, 133.

The Court, not being unanimous, delivered their opinions seriatim.

By the Court.— Nisbet, J., delivering the opinion.

The first assignment charges error in the decision of the presid-ing Judge, in ruling out the testimony which went to show the receipts and profits of the Warm Springs establishment, in 1845, and in 1846, and the reasons for the difference in the amount of receipts for these two years; and in ruling out the testimony of certain witnesses, going to show that they, (the witnesses,) were deterred from visiting, and kept away from the Springs, by the sickness there in 184.6, and on account of a mill-pond erected by the defendant in error.

The decision was based upon the assumption, that the plaintiff brings his suit, in character of keeper of a tavern, or house of entertainment. Suing in that character, the Court held that the evidence was inadmissible, to show damages, until he had first shown complaince with the Act of 1791, in taking out a license to keep a tavern, or house of entertainment. The proposition with which the defendant starts, is not controverted, to wit: that he who sues for damages done to him in a...