Finch v. Green

• Decision Date: 01 January 1871
• Citation: 16 Minn. 315
• Parties: JAMES M. FINCH v. GEORGE W. GREEN.
• Court: Minnesota Supreme Court

16 Minn. 315

JAMES M. FINCH

v. GEORGE W. GREEN.

Supreme Court of Minnesota.

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

The motion for a new trial was on the grounds of "error in law occurring at the trial," "irregularity and insufficiency of the verdict," "misconduct of the jury," "newly-discovered evidence."

The wrong complained of was the overflowing of plaintiff's land by a stone dam built in 1867. In the same place there had been from 1859 to 1867 a dam not so high as the

stone dam, and which did not cause any overflow or injury to plaintiff's land.

G. E. Cole, for appellant.

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Batchelder & Buckham, for respondent.

BERRY, J.

Plaintiff brings this action to recover damages for the overflowing of his land by reason of a dam, which as he claims, defendant has erected and maintains at a greater height than he has a right to do. Plaintiff also prays for an injunction and abatement.

1. Upon the trial defendant asked one Tuttle, a witness called by him, and who stated that he was employed by defendant to build and had charge of the construction of the dam, the following question: "At the time of building the present dam, what instructions did you have from the defendant as to the height to which the new dam should be built?" The defendant contends that this question was improperly rejected. He argues that this is an action for an injury to real estate in which exemplary damages may be awarded if it appears that he has willfully committed the wrong charged, and that it was therefore proper for him to give the instructions in evidence as part of the res gestæ for the purpose of showing that he did not willfully erect the dam at a greater height than he should have done; in other words, for the purpose of showing that he acted with good motives and intentions.

There is no suggestion appearing in the case as to what answer was expected to be given to the question asked, but assuming that it would have been favorable to the defendant, we think the question was properly excluded. To make the instructions inquired for admissible as part of the res gestæ, it would be necessary that they should be so connected with the "main fact," which was in this instance the building of the dam of the height at which it was built, as to illustrate its character. 1 Greenl. Ev. § 108; Lund v. Inhab. Tyngsborough, 9 Cush. 36.

Certainly it will not be contended that the instructions or declarations, as they may be regarded, inquired for in this instance, could have any tendency to illustrate the character of the dam, as of one height or another, nor could they tend to make more clear, or give any peculiar significance to the "main fact." See Nutting v. Page, 4 Gray, 584.

They could not go to illustrate or give significance to the "main fact," as do those declarations which are received as part of the res gestæ, on the ground that they are expressive on the character, motive, or object of a main fact, and as verbal acts indicating a present purpose or intention, for these are cases where such character, motive, or object determines the essential nature of the main fact itself. 1 Greenl. Ev. § 108, and cases supra.

The instructions were therefore properly rejected under the general rule excluding hearsay.

There is still another good reason given by the plaintiff why there was no error in rejecting the question under consideration, and that is that it does not appear by the case that any attempt was made by the plaintiff to show, nor was it claimed, that the defendant's acts complained of were willfully committed; and under this state of the evidence, there was no occasion for the defendant to exculpate himself from that with which he was not charged.

2. The defendant requested the court to instruct the jury that "the attempt to measure the actual height or fall of the stream by a process of instrumental levelings, is less satisfactory than, and must yield to, actual, visible facts, because instrumental measurements are liable to accidents and mistakes." We think this instruction was properly refused.

Assuming that the instruction refers to such actual and visible facts only as have some tendency to throw light upon the subject of inquiry, it could hardly be contended that all instrumental levelings, no matter how skillfully made or carefully verified, are less satisfactory than, and must yield to, all kinds of such actual and visible facts, no matter how remote their reference to the matter in issue, nor how doubtful their proper application, or the inference to be drawn from them. Even as applied to that part of the testimony reported in the case stated, we think the instruction was too broad, and was calculated to mislead the jury; and, as the evidence is not all reported, we cannot say what effect it might have had as applying to all the testimony adduced upon the trial.

3. There was no error in refusing to charge that defendant was "not liable for any extraordinary accumulations of water occasioned by natural causes, although incidentally affected by the dam," since, so far as the case shows, there was no evidence offered to which the instruction requested could have any application.

4. We do not think that the first four instructions given at plaintiff's request are obnoxious to the objection urged against them by the defendant.

We understand this objection to be that the instructions, in effect, inform the jury that the limitation law found in section 17, p. 241, Gen. St., does not bar the plaintiff's right of action for damages, although the dam complained of was erected more than two years before plaintiff's suit was commenced. We do not think this is the meaning of the instructions.

When fairly construed they have no reference to the statute referred to, but their manifest purpose was to inform the jury, irrespective of any question arising upon the limitation law, that the plaintiff would not lose his right of action because he did not watch the defendant, or caution him, or complain of him, or bring suit against him, etc., etc.

5. This is an action in which the plaintiff seeks to recover damages for a nuisance, and an abatement of such nuisance, together with a perpetual injunction against its maintenance or continuance; to all which he is, upon a proper showing, entitled by section 25, c. 75, Gen. St., under which this action is manifestly brought.

This action is not purely legal, nor purely equitable, but is of a mixed nature, since it is one in which both legal and equitable relief are sought.

In accordance with the provisions of sections 198 and 199, c. 66, Gen. St., the issues of fact in this case were triable by the court, "subject to the right of the parties to consent, or of the court to order, that the whole issue, or any specific question of fact involved therein, be tried by a jury or referred."

In this case there...