Horace Day, Plaintiff In Error v. James Woodworth, Miller Turner, William Pynchorn, Robert Fuller, Andrew Sisson, Harvey Clemence, Thomas Bolton, Merret Bristol, Joseph Bowen, Andrew Elmandorf, Seth Pope, Edward Gorham, Ephraim Brett, Arnold Turner, Marcus Toby, George Kipp, John Bump Atthouse, Erastus Brown, Erastus Russell, John Russell, Asa Russell, Edward Woodworth, Loring Robbins, Lorenzo Rice, and Mark Rossiter

• Court: U.S. Supreme Court
• Writing for the Court: GRIER
• Citation: Horace Day, Plaintiff In Error v. James Woodworth, Miller Turner, William Pynchorn, Robert Fuller, Andrew Sisson, Harvey Clemence, Thomas Bolton, Merret Bristol, Joseph Bowen, Andrew Elmandorf, Seth Pope, Edward Gorham, Ephraim Brett, Arnold Turner, Marcus Toby, George Kipp, John Bump Atthouse, Erastus Brown, Erastus Russell, John Russell, Asa Russell, Edward Woodworth, Loring Robbins, Lorenzo Rice, and Mark Rossiter, 54 U.S. 363, 13 How. 363, 14 L.Ed. 181 (1851)
• Decision Date: 01 December 1851
• Parties: HORACE H. DAY, PLAINTIFF IN ERROR, v. W. JAMES WOODWORTH, MILLER TURNER, WILLIAM W. PYNCHORN, ROBERT L. FULLER, ANDREW SISSON, HARVEY CLEMENCE, THOMAS BOLTON, MERRET BRISTOL, JOSEPH BOWEN, ANDREW ELMANDORF, SETH G. POPE, EDWARD GORHAM, EPHRAIM C. BRETT, ARNOLD TURNER, MARCUS TOBY, GEORGE J. KIPP, JOHN B. BUMP, _____ ATTHOUSE, ERASTUS BROWN, ERASTUS F. RUSSELL, JOHN C. RUSSELL, ASA C. RUSSELL, EDWARD P. WOODWORTH, LORING G. ROBBINS, LORENZO H. RICE, AND MARK ROSSITER

54 U.S. 363

13 How. 363

14 L.Ed. 181

HORACE H. DAY, PLAINTIFF IN ERROR, v. W. JAMES WOODWORTH, MILLER TURNER, WILLIAM W.

PYNCHORN, ROBERT L. FULLER, ANDREW SISSON, HARVEY

CLEMENCE, THOMAS BOLTON, MERRET BRISTOL, JOSEPH BOWEN,

ANDREW ELMANDORF, SETH G. POPE, EDWARD GORHAM,

EPHRAIM C. BRETT, ARNOLD TURNER, MARCUS TOBY, GEORGE J.

KIPP, JOHN B. BUMP, _____ ATTHOUSE, ERASTUS

BROWN, ERASTUS F. RUSSELL, JOHN C. RUSSELL, ASA C.

RUSSELL, EDWARD P. WOODWORTH, LORING G. ROBBINS, LORENZO H. RICE,

AND MARK ROSSITER.

December Term, 1851

THIS case was brought up, by writ of error, from the Circuit Court of the United States for the District of Massachusetts.

It was an action of trespass quare clausum fregit brought by Day, a citizen of New York, against the defendants in error, citizens of Massachusetts, for pulling down a mill-dam within the town of Great Barrington, in the county of Berkshire, Massachusetts.

The defendants put in a plea of not guilty, and also a special plea of justification, viz.:

And the defendants further say, that at the time when the said trespasses are alleged to have been committed, and for a long time previously thereto, and prior to, and at the time of the erection of the said plaintiff's said dam, certain mills and a certain mill-dam, the property of, and in the use and possession of

the Berkshire Woollen Company, (a corporation duly established by the laws of the State of Massachusetts,) had been and were then lawfully erected and maintained, by, upon, and across said stream on which plaintiff's dam was built; that while said mills and dam were thus erected and maintained, and used by said corporation, the plaintiff unlawfully caused to be erected in said stream, and below said dam, and at the time of said alleged trespass, unlawfully caused to be maintained therein the said dam in his declaration mentioned, in such manner as to injure the said mills and dam of the said corporation; that the defendants, by direction of said Berkshire Woollen Company, and as their agents and servants, did enter upon the said plaintiff's close, and did break down and demolish said plaintiff's dam, in the manner least injurious to said dam; that they broke down and demolished no more of said dam than was necessary to remove or relieve the injury to said company's mills and dam caused by the maintenance of said plaintiff's said dam as aforesaid, and that said defendants did not break and enter the plaintiff's close, any further or otherwise, nor thereupon use more force or violence, than were reasonably necessary to relieve the injury aforesaid.

The plaintiff joined issue upon the plea of not guilty, and replied to the special plea as follows:

And as to the said plea of the said defendants by them first above pleaded, the said plaintiff says, that he ought not to be barred from having and maintaining his aforesaid action thereof against them; because he says, that although true it is that at the said time when, &c., the said Berkshire Woollen Company were then the owners and possessed of the said mills and dam in the said plea mentioned, and although true it is that the said mills and dam were upon and across the same stream on which the said plaintiff's dam then was, and although true it was that the said defendants committed the said trespasses by command of the said corporation, for replication nevertheless in this behalf, the said plaintiff says, that the said defendants of their own wrong and without the residue of the cause in their said plea alleged, broke and entered the close of the said plaintiff, and tore down and destroyed the said dam, and committed the said trespasses in the introductory part of the said plea mentioned, in manner and form as the said plaintiff hath above complained, and this he prays may be inquired of by the country. Wherefore he prays judgment and for his costs.

By B. R. CURTIS, Esq., his Attorney.

And the defendants do the like.

By WILLIAM WHITING, Esq., their Attorney.

Upon the trial, the jury came into court once for instructions, and afterwards returned three times with verdicts.

The final verdict was as follows:

In the above-entitled cause the jury find that the reduction of the said dam of the said plaintiff, to the extent of three inches for its entire length, was justified; but that the further reduction was not justified; and so the jury find that the said defendants, of their own wrong, and without the residue of the cause by the said defendants in their said first plea alleged, committed the trespasses in the said plea mentioned, in manner and form as the said plaintiff hath, in his said declaration, complained; and thereof assess damages in the sum of two hundred dollars.

ROBERT ORR, Foreman.

Whereupon the court entered up judgment for two hundred dollars damages, without costs. The reason why the judgment was entered 'without costs' may be seen by a reference to a book recently published by Stephen D. Law, Esq., p. 256. The book is upon the jurisdiction and practice of the United States Courts.

The bill of exceptions contains the proceedings of the court with respect to these several verdicts, and was as follows:

Bill of Exceptions.

This is an action of trespass for breaking and entering the plaintiff's close and tearing down his mill-dam. The defendants justified under an alleged right to enter, &c., because the dam was a nuisance to mills above, on the same stream, belonging to the Berkshire Woollen Company, whose servants the defendants were, and that, by command of the said company, the defendants entered and took down so much and no more of the said dam as was necessary to relieve the mills above.

At the trial the defendants claimed the right to begin and offer their evidence first, and open and close the argument. The plaintiff claimed the same right. The presiding judge ruled in favor of the defendants, and the plaintiff's counsel excepted to the ruling. The presiding judge instructed the jury in his first summing up, that the defendants had a right by law to enter the plaintiff's close, and to take down so much of the plaintiff's dam as was necessary to relieve the mills above from all practical injury occasioned by that dam; but that if the defendants had taken down more of the dam than was necessary for that end, or if none was necessary to be taken down for that end, the jury must find for the plaintiff.

That if the jury should find for the plaintiff on the last ground, viz. that the plaintiff's dam caused no injury to the mills above, the plaintiff was entitled to a complete indemnity,

and the jury would allow in damages the cost of restoring so much of the dam as was taken down, and compensation for necessary delay of plaintiff's mill; and they might also allow such sum for the expenses of prosecuting the action, over and above the taxable costs, as they should find the plaintiff had necessarily incurred for counsel-fees and the pay of engineers in making surveys, &c. But if the jury should find for the plaintiff on the first ground, viz. in that the defendants had taken down more of the dam than was necessary to relieve the mills above, unless such excess was wanton and malicious, then the jury would allow in damages the cost of replacing such excess, and compensation for any delay or damage occasioned by such excess, but not any thing for counsel-fees or extra compensation to engineers.

The plaintiff's counsel requested the court to instruct the jury that they might allow counsel-fees, &c. if there was any excess in taking down more of the dam than was justifiable, and gave as a reason that the defendants thereby became trespassers ab initio. The presiding judge instructed the jury as above set forth on this point.

After being charged by the presiding judge, the jury retired, and subsequently came into court for instructions, preferring a written request, as follows:

U. S. C. C. Jury Room, Dec. 8, 1849.

TO HIS HONOR JUDGE SPRAGUE:

If the jury find that the plaintiff's dam was too high and ought to be reduced, but not to the extent of the reduction by the defendants, can the jury find a verdict to that effect for the plaintiff according to law? if so, can they find damages for the excess of such reduction?

R. ORR, Foreman.

Thereupon the presiding judge gave anew the instructions above set forth, except that he instructed them not to allow any thing for counsel-fees, &c. if they should find that the reduction of the dam to any extent was justifiable. The jury again retired, and subsequently returned into court with a written paper, in the words following:

U. S. C. C. Jury Room, Dec. 8, 1849.

In the case of H. H. Day against Woodworth et al. the jury find that the reduction of the plaintiff's dam to the extent of three inches for its entire length justifiable. The jury further find that the defendants pay to the plaintiff the sum of one thousand dollars in full for such excess of reduction and delay.

ROBERT ORR, Foreman.

The plaintiff asked to have a verdict presented to the foreman for his signature, following the words of the issue. The presiding judge stated that he was not prepared to say to the jury that that would be the same in substance as their finding, and ruled that the verdict, to be presented to the foreman for his signature, should also set forth that part of the finding that the plaintiff's dam was lawfully reduced to the extent of three inches throughout its entire length. There was no evidence that the defendants had reduced the plaintiff's dam through its entire length, but it appeared that the plaintiff's dam was one hundred and twelve feet long, and that the part cut down by the defendants was the most westerly part, about fifty-four feet in length, and that this fifty-four feet was cut down about ___ inches, and that this would have the effect of reducing the obstruction presented by the dam more than three inches for its entire length.

To the above rulings of the presiding...