Clark v. Lake

• Decision Date: 31 December 1835
• Parties: PHILIP CLARK, plaintiff in error,v.BAYLESS LAKE, defendant in error.
• Court: Illinois Supreme Court

1 Scam. 229

2 Ill. 229

1835 WL 2184 (Ill.)

PHILIP CLARK, plaintiff in error,

v.BAYLESS LAKE, defendant in error.

Supreme Court of Illinois.

December Term, 1835.

THIS cause was tried at the July term, 1835, of the Sangamon Circuit Court, before the Hon. Richard M. Young and a jury, and a verdict and judgment rendered for the defendant.

C. WALKER, for the plaintiff in error.

J. T. STUART and M. MCCONNELL, for the defendant in error.

LOCKWOOD, Justice, delivered the opinion of the Court:

This was an action of trespass on the case, brought by Clark against Lake, in the Sangamon Circuit Court. The plaintiff declared against the defendant for erecting a dam across the Sangamon river--which stream had been declared a public highway by a statute of this State--whereby the plaintiff had been obstructed in the navigation thereof, while proceeding down the river with a boat load of corn, and thereby lost his said boat and contents. The defendant pleaded not guilty. On the trial of the cause, the plaintiff gave evidence conducing to prove that he descended said river with a boat load of corn, with a sufficient tide of water to descend the river, if it had not been obstructed by artificial obstacles, and intending to go to Natchez or New Orleans. That when the boat arrived within three fourths of a mile of the defendant's mill-dam, he stopped his boat. That in consequence of the said dam's impeding the navigation of the said river, the boat could not proceed on the trip, and, in consequence of being so stopped, the corn was lost. That the corn was worth twelve and a half cents per bushel where it was stopped on the river, and worth seventy-five cents at the lower markets. After the foregoing evidence was given, the defendant asked a witness, “Whether there was not another mill-dam across said river, below the defendant's mill-dam, erected in violation of said law, which was higher than the defendant's mill dam; and whether said lower dam would not have prevented plaintiff from proceeding to the lower markets of Natchez or New Orleans, as it was late in the season and no other tide might take place in the river during that season, even if the plaintiff could have gone over the defendant's mill-dam,”--to which the plaintiff's counsel objected; but the court overruled the objection and permitted the question to be asked and the defendant to prove that fact to the jury by said witness. To which opinion and judgment of the Court the plaintiff by...