Hitchens v. Shaller

• Decision Date: 26 October 1875
• Citation: 32 Mich. 496
• Court: Michigan Supreme Court
• Parties: Joseph W. Hitchens v. Adam Shaller

32 Mich. 496

Joseph W. Hitchens v. Adam Shaller

Supreme Court of Michigan

October 26, 1875

Heard October 8, 1875

Error to Livingston Circuit.

Judgment reversed, with costs, and a new trial ordered.

J. L Topping, for plaintiff in error.

Dennis Shields, for defendant in error.

OPINION

Graves, Ch. J.:

Hitchens sued Shaller to recover damages for trespass upon his land. The trespass consisted in deepening an old ditch on the plaintiff's land to relieve the land of the defendant from water. The gravamen of the action was, not to establish a possessory right, but to obtain money satisfaction for the imputed grievance. The only defense against the right to recover something was an alleged license. The issue was tried by jury, and they returned a verdict for defendant. No complaint is made against the charge, and it is not set up in the record. Three errors are assigned; two on exceptions taken to the admission of evidence, and the third that upon the whole evidence the plaintiff was entitled to a verdict. The first objection to evidence is so plainly untenable it would be a waste of time to dwell upon it, and the record fails to support a charge of error based on the supposed effect of the whole evidence. In order to raise the point, I think it should appear that the court refused to instruct the jury to find for the plaintiff. But it is not shown that any requests were made, or that the plaintiff was in any way dissatisfied with the rulings of the judge in his instruction to the jury.

The second exception on the admission of evidence is well based. The ruling was erroneous and prejudicial. Bearing in mind that the only defense made against the right to maintain the action was a claim to justify under a license, a short reference to the facts will be useful. The plaintiff had given evidence that a shallow ditch had for many years existed on his land, and that defendant went on and considerably enlarged it. There was other testimony that the plaintiff had verbally consented that defendant might enlarge the old ditch, but revoked such consent very shortly after the enlargement was begun, and that defendant went on notwithstanding. The defendant testified that plaintiff told him he might sink the old ditch a foot lower, and that he then let the job to one Martin, and plaintiff pointed out the place to begin at; that Martin commenced, and soon afterwards the plaintiff claimed they were going deeper than a foot, and demanded that the work should cease; that defendant replied, if they were going too law he would tell them not to dig too deep; that the next day he went to the ditch and found they had deepened it but ten inches,...