Dorman v. Ames

• Decision Date: 01 January 1867
• Citation: 12 Minn. 347
• Parties: ARTEMAS W. DORMAN v. GEORGE F. AMES and another.
• Court: Minnesota Supreme Court

Page 347

12 Minn. 347

ARTEMAS W. DORMANv.

GEORGE F. AMES and another.

Supreme Court of Minnesota.

Appeal by plaintiff from an order of the district court, Hennepin county, denying a new trial.

The action was to recover damages caused by overflowing land of plaintiff by a dam erected and maintained, as alleged, by defendants on their own land, and for an abatement of it as a nuisance. On the trial, in order to show his right to recover for a portion of the time that the dam was in existence, the plaintiff offered in evidence the certificate of the register of the United States land-office for the district in which his land was situated, showing that he had filed a declaratory statement for such land under the pre-emption law of the United States. On objection by defendants this was excluded. After the plaintiff rested, the action was dismissed as to the defendant George on the ground that there was no evidence to show that he had any interest, or claimed any, in the dam, or the land on which it was erected, or had anything to do in maintaining the dam. There was a verdict for defendant Ames. The other points presented and how they arose are stated in the opinion.

Henry Hinds, for appellant.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

F. R. E. Cornell, for respondent.

McMILLAN, J.

By our statute, "no action for damages occasioned by the erection and maintenance of a mill-dam shall be sustained unless such action is brought within two years after the erection of such dam: provided, that such limitation shall not run against or apply to persons living on and holding government land under the pre-emption laws, until a patent for the land damaged or overflowed is issued." Gen. St. c. 31, § 17, p. 241. The patent was issued July 1, 1861; the action was brought in May, 1863; but the land was held by the plaintiff under the pre-emption law. While the statute did not bar the action, yet to entitle the plaintiff to recover damages for injuries prior to the issuance of the patent, it was important for him to show his right to the land under the pre-emption law. To do this it was necessary to show that he had filed the declaratory statement required by the act of congress in the proper land-office. The statute makes the certificate of the register of the land-office of the district, to any facts in regard to the lands in his district, taken from the books of such land-office, prima facie evidence of the facts therein stated. Gen. St. c. 73, § 86, p. 530. The certificate of the register was therefore proper, at least, to show the filing of the declaratory statement by the plaintiff upon the lands described in the certificate. The second point in the plaintiff's brief as to the rejection of the transcript of the land-office record, showing the entry of the land by defendant Ames was not insisted on by the plaintiff, and need not be further considered. The third point is that the court erred in rejecting the offer of the plaintiff of testimony to prove damage sustained after the commencement of this action and up to the time of trial. In this there was no error. The rule of damages in actions of this kind is the injury sustained at the commencement of the suit. 1 Hill. Torts, c. 19, § 16, p. 656.

The reason of this rule is that every continuance of a nuisance is a fresh nuisance, for which an action may be maintained, and if a plaintiff were permitted to recover prospective damages it would be for a substantive cause of action arising subsequent to the commencement of his suit. In this it differs from trespass, which is a single act. Beckwith v. Griswold, 29 Barb. 293; 1 Chit. Pl. 339, marg. p.; 1 Hill. Torts, c. 19, § 16a.

The fourth point of the plaintiff is that this evidence having been rejected, it was also error in the court in allowing the defendant to give evidence refuting such damage. The testimony on which this objection is based is that of a witness, Eagan, who testified that he knew Dorman's land; was on it in 1855, and different parts of it more or less every year since, and was on it in 1864 with Dorman. The defendants' counsel then asked him the question: "Did you notice any difference or changes in the land since 1855?" to which the plaintiff objected, and the court overruled the objection, to which the plaintiff excepted. The witness answered: "I saw no difference or change in the condition of the meadow since 1855. Have been on meadow when dam was in and when out. Saw no particular change in the sloughs since I first became acquainted with them, occasionally in high water, and there was no difference in regard to the stage of water to be shown on the face of the meadow." And in answer to a question as to the condition of the meadow in 1864, — also objected to by the plaintiff, — he answered: "There was no more water on the meadow than before the dam was erected." And in answer to the further question, also objected to by the plaintiff, "Is the quantity of grass land on Dorman's land as much now as before the dam was erected?" he answered, "Yes, it is; and there is as much plough land." The object of this testimony, manifestly, was to show that the dam had no effect in flowing the plaintiff's land, not to show the plaintiff's damages since the commencement of the action, and for this purpose it was legitimate. The weight it would have is not for our consideration here.

The same witness testified: "In 1855 the meadow produced blue joint, and in higher ground red top. A change has been going on slow since, — now more red top. It wants moist land for blue joint. Grass in lower slough not as coarse as it was. No particular change in others." Defendant then asked the witness: "Are similar changes going on in other meadows?" which was objected to by plaintiff, and the objection was overruled by the court, and plaintiff excepted. The witness answered: "There are." This evidence was doubtless offered for the same general purpose as that last considered, and under some circumstances would, perhaps, have been competent; but clearly the fact that changes of this character were going on in other meadows would not disprove the fact that the changes in the plaintiff's meadow were caused by the overflow of water occasioned by this dam. The objection should have been sustained.

The seventh point is that the court erred in dismissing the action as to the defendant George. It is not necessary in an action of this nature that a person charged with erecting the nuisance should be the owner of the freehold, or any part of it, upon which the dam is erected; it is sufficient if he is a party to the erection of the obstruction claimed to be a nuisance. It is urged by the counsel for the respondents that there is no competent evidence going to show that the defendant George had any interest, or claimed any, in the dam, or premises whereon it was built, or that he had anything to do with maintaining it. In this the counsel is mistaken. The plaintiff Dorman, in his testimony on the trial, says: "The building of the dam was commenced in 1856 and completed in 1857. It is 150 to 175 feet long and 7 feet high, I judge; I never measured it. It was built by the defendants. The dam went off the next spring, and was rebuilt by the defendants. It went off again, I think, in 1859, and was again rebuilt by defendants. The saw-mill and grist-mill are on the same quarter-section, and were built in 1857, by the defendants, and been occupied by Ames ever since. The dam has been in possession of Ames ever since it was built. George has a machine shop near the dam, run by the water taken from the dam. When the dam went off George talked to me about how to rebuild it, and he said the dam must be built in a more substantial manner."

John F. Powers, a witness for plaintiff, says: "In February, 1863, the defendant George told me he had sold out to Ames; since then he has used a machine shop run by the water-power from this dam. I know the dam. It was built by the defendants and finished in the fall of 1857; part went out in 1858 or 1859, in the spring, 50 to 60 feet. It was repaired the same summer by the defendants Ames and George. Part of dam, 75 to 80 feet, went out again, and was rebuilt by the defendants. In the fall of 1857 the defendant George told me that he owned two-ninths of the mill site, and Ames four-ninths, and Florada three-ninths. In February, 1862, George told me he had sold out to Ames." There is no reason suggested by the defendants' counsel why this testimony is not competent to show the erection of the dam by the defendant George, and we see no reason why, in an action of this kind, it is not competent for that purpose, since the erection of the obstruction is sufficient to constitute a liability, and the disposition of his interest subsequently, if it were established, would not defeat the action for the damages arising from a nuisance erected by him. We think there was evidence sufficient to send the case to the jury as to the defendant George, and it was error under these circumstances to dismiss the action as to him.

The eighth point made by the plaintiff is that the verdict of the jury is against the law and the evidence, and is not supported by the evidence.

It appears from the paper book that the case as settled "contains such of the testimony and evidence given on the trial of this cause, and rulings and decisions and instructions of the court to which exceptions were taken." Before the objection to a verdict, that it is against the evidence, or not supported by it, can be considered by this court, it must appear that all the evidence given upon the trial in the court below is presented in the paper book, and when the paper book does not purport to set forth the whole of the testimony, the court will presume that evidence sufficient was given to support the verdict. This brings us to the consideration of the portions of the charge given by the court below to the jury, and the refusal of the...