Gooch v. Conner

• Citation: 8 Mo. 391
• Parties: GOOCH v. CONNER.
• Decision Date: 31 January 1844
• Court: United States State Supreme Court of Missouri

8 Mo. 391

GOOCH

v.CONNER.

Supreme Court of Missouri.

January Term, 1844.

APPEAL FROM COOPER CIRCUIT COURT.

TODD and MILLER, for Appellant. 1. The clause in Conner's deed to Gooch, saving the rights of Conner as to his mill and works, is not a covenant or agreement upon which suit will lie; or by which Gooch is estopped from alleging the fraud, misrepresentation, or mistake of the grantor, in procuring such reservation. 4 Cruise's Digest, pp. 11, 15, 213, § 56; 15 Mass. R. 183; 1 Starkie, 262; 2 ibid. 557; Greenleaf's Ev. 30. 2. If the clause in the deed operates for the grantor as an agreement, it is no more than the law imposed upon Gooch upon the erection of a dam and works upon the stream below Conner's mill. 3 Kent, 439. 3. The action being in case, gave the defendant liberty under the issue to prove these circumstances in justification or excuse for the injury complained of. 1 Chitty, 527. 4. The circumstances offered in proof are directly calculated to show fraud, misrepresentation, or mistake in the plaintiff, by which the defendant gave his consent to the reservation. 5. The plaintiff, by parol license, authorized the defendant to erect his dam as he did, which is a justification, and the proof offered was legal to show such license. 4 Dana, 338; 7 N. H. R. 237; 7 Bingham (Com. Law) toppaging, 287; 7 Taunton, 145, top-paging; 1 Chitty, 528.

LEONARD and HAYDEN, for Appellee. 1. The plaintiff had a right to the use of the stream as it flows through his land, without any interruption from the proprietors above or below, and is therefore entitled to recover for any injury to his machinery occasioned by the erection of the defendant's dam. Menzies v. Breadelbone, 3 Bligh, N. S. 418; Wright v. Howard, 1 Sim. and Ster. 203, reported in 1 Eng. Cond. Ch. R. 95; Mason v. Hill and others, 3 Barn. and Adol. 304, reported in 23 Cond. Eng Com. L. R.; Cross v. Lewis, 2 Barn. and Cress. 686, 690, reported in 9 Cond. Eng. Com. L. R. 221; Tyler v. Wilkinson, 4 Mason's R. 500; Gilman v. Tilton, 5 N. H. R. 231; King v. Tiffany, 9 Conn. R. 152; Crooker v. Bragg, 10 Wend. R. 260; 2 Phillips' Ev. Cowen and Hill's ed. part 1, pp. 375, 384. 2. The plaintiff's declarations to Woodward, made several years before the sale, and to Chandler a short time previous to the sale, was properly excluded. 3 Kent's Com. 4th ed. 451, 453; Munford v. Whitney, 15 Wend. R. 381; Greenleaf's Ev. 315-16; 3 Phillips' Ev. Cowen and Hill's ed. part 2, p. 1466-1476, and cases there cited; 1 Greenleaf's Ev. 30; Sherwood v. Salmon, 2 Day's Cases in Error; Chapman v. March, 19 Johns. R. 289; 4 Cowen R. 442; Story's Eq. 207-8-9-10. 3. The omission of the plaintiff to object to the erection of the defendant's dam to the hight to which it was erected, was no evidence of a parol license to make such an erection as would back the water upon the plaintiff's machinery. 1 Greenleaf's Ev. 229-30.

NAPTON, J.

This was an action of trespass on the case brought by Conner against Gooch, to recover damages occasioned by the back-water from Gooch's milldam flooding the machinery of the plaintiff's mill. A verdict was found for the plaintiff for $970 89, upon which judgment was entered, and from this judgment defendant appealed. Upon the trial it appeared that the plaintiff was the owner of a mill site, mills and machinery connected therewith for grinding, sawing, & c., situated on the same stream with defendant's mill site, and about four or five miles above it; that plaintiff's mills had been erected, the steps required by our statute having been taken, some fifteen or eighteen years; that the site occupied by defendant originally belonged to plaintiff; and had been, at his (the plaintiff's) instance condemned for a dam ten feet high, and subsequently to such inquisition was sold by plaintiff to defendant, who erected a dam thereon about seven feet and a half high, the back-water from which overflowed the plaintiff's wheels.

The defendant offered, in his defense, to prove by a witness, that he, the defendant, came from Ohio to the house of witness, in Cooper county, in 1838; that whilst there, plaintiff inquired of witness whether defendant had yet purchased a mill site, and being informed that he had not, requested witness to tell defendant that he, plaintiff, would sell him one at Big Lick for $2500; that he, plaintiff, had had the site condemned for a dam ten feet high, but that he did not think he could warrant one more than eight and a half or nine feet high, from the apron; that this conversation was repeated by the witness to defendant, who thereupon, in company with witness, went to the house of plaintiff, and contracted for the purchase of said site, it being the same site upon which defendant's dam is erected. This testimony was rejected by the court.

The defendant read the deed from plaintiff to defendant, conveying the tract of land embracing the said site, which was a deed poll, and contained the following clause: “It is, however, distinctly understood, in conveying the said land, that the said Conner conveys no right to the said Gooch by virtue of his having a mill site condemned on the premises, to erect a milldam that will injure said Conner's mill by backing the water on him.”

The defendant offered to read the petition of plaintiff to the Cooper Circuit Court, praying for a writ of ad quod damnum, and for leave to erect a dam ten feet high at the Big Lick (being the site conveyed to defendant), with the proceedings and final order of the court thereon, but the same were excluded by the court. The defendant also offered the deposition of Joel E. Woodward, the sheriff of Cooper county, when the writ of ad quod damnum was executed, to prove that plaintiff declared to witness, at that time, that he (plaintiff) had leveled the creek from Big Lick to his own dam, and that a ten-foot dam would not injure his mill, though he only desired an eight-foot dam, and that plaintiff requested witness to state this to the jury. This testimony was also rejected. The defendant also...