Chaffin v. Fries Mfg. & Power Co.
| Decision Date | 19 April 1904 |
| Citation | 47 S.E. 226,135 N.C. 95 |
| Parties | CHAFFIN et al. v. FRIES MFG. & POWER CO. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Davie County; W. R. Allen, Judge.
Action by Julia Chaffin and others against the Fries Manufacturing & Power Company. From a judgment for defendant, plaintiffs appeal. Reversed.
E. L Gaither, E. J. Justice, and Lindsay Patterson, for appellants.
Watson Buxton & Watson, for appellee.
The plaintiffs are the owners of a farm on the west bank of the Yadkin river. They bring this action to recover damages, both permanent and annual, for injury to the land alleged to have been caused by the erection and maintenance of a dam by the defendant across the river, and below their tract of land. They allege that the dam raised the water in front of their land about 6 feet, and there was evidence on the part of the defendant that it had been raised 2 feet and 9 inches, but that the banks of the river at that place were 14 feet high. The plaintiffs claimed that by this rise in the water along their farm the fall in a branch running from their land into the river had been destroyed, and the water in the branch had been ponded back further on their lands, and that by reason of this loss in fall their lands had become incapable of being ditched, and had been rendered unproductive. And they further claimed that by raising the water six feet their lands had become more subject to overflow, and that thereby their bottom lands had been washed and rendered worthless. The defendant denied all of said allegations. There was much testimony introduced by both parties, some tending to show that the plaintiffs had been injured and damaged by the erection and maintenance of the dam, and some tending to show that they had not, but that the damage to their land was due to other causes than the erection of the dam. The court submitted to the jury the following issue, "What damage if any, have plaintiffs sustained by reason of the erection of the dam?" The jury answered this issue "None." There was a judgment upon this verdict against the plaintiffs, and they excepted and appealed.
The plaintiffs' first exception is to the refusal of the court to give their first prayer for instructions. In this prayer they requested the court to instruct the jury as to the estoppel against the plaintiffs arising out of the verdict and judgment in this case, because the damages would be assessed by the jury for all time, they being past, present, and prospective. If the plaintiffs were entitled to have this instruction given in the form in which it was asked, we are of the opinion that the nature of the suit and of the damages that could be awarded were fully explained to the jury by the court, and that plaintiffs were not prejudiced by the refusal to give the specific instruction. The same may be said of the second and third prayers for instructions, which related to the kind of damages to which plaintiffs would be entitled should the jury find in their favor. The plaintiffs cannot insist that the court should have given these instructions in the very language employed in framing them. It is a sufficient response to prayers if the court, in its own words, chosen, perhaps, so as not to do any injustice to either side, gives the instructions substantially, provided that the party who asks for them will have the full benefit of the principles of law he seeks to have applied to the facts. This rule is too familiar to need further comment or the citation of authority to support it.
The plaintiffs also complain that the court, in charging the jury as to the damages, referred only to those which were caused by the "erection" of the dam, and that by failing to use the words "and maintenance," the jury were misled as to the kind of damages the plaintiffs were entitled to recover, and the court thereby excluded from their consideration any damages which may have resulted from the maintenance of the same. It will be observed that, if this criticism of the charge were correct in itself, the language of the court corresponds exactly with that of the issue, and to this issue, when submitted by the court, there was no exception. But we do not think the plaintiffs have any ground of complaint because of any such defect in the charge, as, upon even a cursory examination of it, we think it will appear that the court made it perfectly clear to the jury that plaintiffs were entitled to recover, if anything, the damage caused both by the erection and maintenance of the dam; not only damages caused at or immediately after the time of its erection, but those which have been caused since that time by the dam as an obstruction in the stream. We approve the charge of the court as to the proper rule for assessing the damages. Ridley v. Railroad, 118 N.C. 1009, 24 S.E. 730, 32 L. R. A. 708; Parker v. Railroad, 119 N.C. 687, 25 S.E. 722.
No question is presented in this case as to the right of acquiring a perpetual easement by the payment of permanent damages. The defendant is not a public or quasi public corporation, and has not, therefore, the right to condemn private property for its uses, or, in other words, the right of eminent domain.
The plaintiffs' sixth exception was taken to the following instruction of the court to the jury: and the seventh exception was taken to this instruction: "If you find from the evidence that the erection of the dam caused water to be ponded on the lands of the plaintiffs to any appreciable extent, the plaintiffs would be entitled to recover nominal damages, although you might not be satisfied that the plaintiffs have suffered substantial damages." The plaintiffs contend that by the first of said instructions the court required a greater degree or intensity of proof to be adduced by the plaintiffs than the rules of evidence warranted, and that all that is required by those rules is that plaintiffs should prove their case by the greater weight of the testimony, and not to the satisfaction of the jury. The part of the charge selected for the exception is not all of the charge as to the degree of proof required. The court had already charged the jury as follows: "The burden is upon the plaintiffs," etc., etc. It will not do, in passing upon the correctness of a charge, to consider it in detached portions, but we must look at the context, and examine what follows in connection with that which precedes. In other words, the charge must be considered as a whole. Elliott v. Jefferson, 133 N.C. 211, 45 S.E. 558; Everett v. Spencer, 122 N.C. 1010, 30 S.E. 334. The same rule applies when deciding upon the admissibility of testimony. State v. Ledford, 133 N.C. 714, 45 S.E. 944. When the part of the charge of the court excepted to is considered and tested by this reasonable rule of the law, we think it sufficiently, and, indeed, clearly, appears that the jury were instructed, at least substantially, that the plaintiffs were required to make out their case by a preponderance of the evidence, and that the court explained to them with sufficient fullness and accuracy what is meant by the preponderance of the testimony, and how the jury should apply the rule to the facts and circumstances of the case in order to determine whether plaintiffs had met the requirement. The use of the word "satisfied" did not intensify the proof required to entitle the plaintiffs to the verdict. The weight of the evidence must be with the party who has the burden of proof, or else he cannot succeed. But surely the jury must be satisfied, or, in other words, be able to reach a decision or conclusion, from the evidence, and in favor of the plaintiffs, which will be satisfactory to themselves. In order to produce this result, or to carry such conviction to the minds of the jury as is satisfactory to them, the plaintiffs' proof need not be more than a bare preponderance; but it must not be less. The charge, as we construe it, required only that plaintiffs should...
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