Cook v. Pridgen

• Decision Date: 31 January 1872
• Citation: 45 Ga. 331
• Court: Georgia Supreme Court
• Parties: JAMES C. COOK, plaintiff in error. v. PRIDGEN, STAPLER & DUNN, defendants in error.

45 Ga. 331

JAMES C. COOK, plaintiff in error. v. PRIDGEN, STAPLER & DUNN, defendants in error.

Supreme Court of the State of Georgia

(Atlanta January Term, 1872.)

Water-courses. License. Prescription. Equity. Practice. Before Judge Harrell. Muscogee Superior Court. June, 1871.

In 1869, Cook sued Pridgen, Stapler & Dunn, averring that in said year he owned certain described land and they erected a mill-dam below it, and thus overflowed and injured said land. Besides the general issue, defendants pleaded as follows: Cook's land belonged to Cook's father during 1838 and until his death in 1864, then for life to Cook's mother, till she died in 1864, then to Cook and his sisters, as remainder men; that in 1838 Jones owned the land next below said Cook's, where the dam is, and owned it until 1864, when he died; that his administrator then sold it to defendants; that in May, 1868, Jones began building a dam across the Chattahoochee river and a mill, the dam to be five feet high; that while Jones' agent was building the dam, Cook frequently was present and inquired as to the probable extent of back-water which such dam would cause; that said agent explained to him the level, and said if the dam was five feet high the water would be raised a foot above its natural height at Cook's line, and that by making the dam six feet high the raise at Cook's line would be two feet, and told Cook *that it was very desirable to have the dam six feet high, and asked Cook to allow him to make it six feet high; that Cook said he did not believe that a raise of two feet at his line would overflow his lowlands or injure them, and told the agent he might make Jones' dam six feet high. Thereupon, with Jones' approval, the dam was so built and finished in 1869. At the same time Jones built a valuable mill and put in machinery, to be run by water raised by said dam. The dam cost Jones $5,000, and the mill and machinery cost $10 000, which expense was incurred by reason of said Cook's said permission. That Jones kept up the dam and mill while he lived; his administrator kept them up till in 1865, when the United States forces burnt down the mill, and then the administrator sold the dam (which was as it had been) and land to defendants, who rebuilt the mill at a cost of $10,000, relying on said license; and during all of said time, from 1838 until this suit was begun, said overflow had been continued without interruption as aforesaid.

The evidence on the trial as to the title of the parties to their respective land was as stated in the plea, plaintiff having acquired the whole title to his land by purchasing his sisters' interests, one in 1854 and the other in 1868. Plaintiff proved that part of this dam was washed away in 1841; that it was rebuilt, one end exactly where it had been and the balance a little lower down; that it was all washed away in 1855 and again rebuilt, where it was last time substantially, but part of it a little lower down. Plaintiff gave evidence that the dam was broken when defendants bought. He also had evidence that the dam raised the water at Cook's line about five feet above its natural level, and that he notified the parties in 1855, and that when defendants repaired the dam that he would sue them for damages. He showed the quantum of damages. Defendants proved the facts averred in their plea, and gave evidence tending to deny plaintiff's complaints at building, repairing, etc., as aforesaid. Inrebuttal, plaintiff showed, among other things, that for *many years during said overflowing his said sisters were minors and then femes covert.

The evidence closed. The Court explained to the jury the nature of the action, and told them to find for the plaintiff the damages proved, if the defendants had overflowed his land, unless the defendants had made a good defense. As to the defenses, he charged as follows: "They set up several special pleas, which may be briefly designated by calling them pleas of 'License, ' 'Prescription' and the 'Statute of Limitations, ' which I will explain to you in their order. The defendants, under their plea of license, say that they are not guilty of trespassing on the plaintiff's land, because, they say, that, if the water is backed on plaintiff's land, by reason of their dam, it is not backed over two feet, and that they are purchasers for value of Seaborn J. Benning, as administrator of Seaborn Jones, of the lot of land on which their dam is situated, with all the rights, members and appurtenances thereunto belonging, and that one of these rights was a right to back water on plaintiff's land, to the height of two feet; that this right arises from an agreement of purchase, or, in other words, a license acted upon, between James Cook, the ancester of the present plaintiff, and Seaborn Jones, now deceased, the intestate of the vendor, Seaborn J. Benning. You have heard the evidence upon this point; you will weigh it well, and apply to it the following rules of law: You will first determine whether the license the defendant sets up was a gratuitous license, or whether it was a license upon valuable consideration, if you shall consider such a license was ever granted. If it was a gratuitous license, it is no justification to the defendant, because a gratuitous license is of the nature of a personal privilege; it is revoked by the death of the grantor, and also by the assignment or sale of the property to which the privilege or license was attached. But, if the license set up was granted, and was a license upon a valuable consideration, then the defendants arejustified in backing water on the plaintiff\'s land to the extent of two *feet, if you believe the license was for two feet. So that if you determine the defendant\'s dam hacks water on the plaintiff\'s land, and that there was no license granted to Jones by Cook, or, if granted, it was a gratuitous license, or if it was a license for value, and you should find the water is backed over the height allowed by the license, in each of these cases you would find for the plaintiff such amount of damages as the proof may show he has sustained. But, in the last mentioned case put, viz., if a license was granted for a valuable consideration, and the amount of back-water exceeds the amount allowed by the license, the damages you would allow would not be the whole amount of damages sustained by the plaintiff by reason of the back-water, but the amount of damages sustained by reason of the excess of back-water over that allowed by the license, if any such you should determine there is. In saying that you will find for the plaintiff in the cases put, I mean so far as the defense set up by the defendant in this plea of license is concerned. I will hereafter give you the rules of law in charge, as to the other defenses set up by the defendants. If, on the other hand, in considering the question of license, you should determine that a license was granted upon valuable consideration, and that the backwater does not not exceed the amount allowed by the license, then you need go no further, but will return a verdict for the defendant. And to determine whether the license, if granted, was a gratuitous license, or a license for a valuable consideration, I give you this rule of law in charge: If, at the time of granting the license, or afterwards, Mr. Cook received any benefit, or Mr. Jones sustained any injury, then this benefit or injury would be a valuable consideration that would support the license. If the evidence shows that at first Jones intended to build a dam five feet high, and afterwards, by reason of and acting upon the faith of the license granted by Cook, he went to additional expense to make his dam six feet high, or inany way added to his mill, then this additional expense or in-jury to Jones *would be a sufficient valuable consideration to support the license, and to render it irrevocable.

"The plaintiffs, in this case, insist that this would be allowing an interest in land to pass by parol. Ordinarily, I tell you that an interest in land can only be passed by writing; but, where A sells land to B by parol, and B pays the purchase-money, the law will not allow A, after receiving the purchase-money, to set up the Statute of Frauds. So, in this case, if Cook granted a license to Jones, and Jones gave valuable consideration for it, in the manner I have explained to you before, then the law will not give to Cook, or those claiming under him, the benefit of the statute of Frauds. So that on this point the case reverts back to the original questions—was a license granted? Was it a gratuitous license? Or was it based on a valuable consideration, and, if on a valuable consideration, has it been exceeded?

"If you should determine in favor of the plaintiffs on the general issue, and on the special plea of license, you will next consider the plea the defendant sets up of prescription.

"In this plea defendants do not rely on any original license, but set up that the successive and continued possession of Jones, Ben-ning and themselves, of the land of plaintiff, covered by the backwater, has been continued and adverse to the plaintiffs for a period of over twenty years. It is unnecessary to explain to you...