Jones v. The Water Lot Co. Of Columbus

• Decision Date: 31 July 1855
• Docket Number: No. 77.,77.
• Citation: 18 Ga. 539
• Parties: Seaborn Jones, plaintiff in error. vs. The Water Lot Company of Columbus, defendants in error.
• Court: Georgia Supreme Court

18 Ga. 539

Seaborn Jones, plaintiff in error. vs. The Water Lot Company of Columbus, defendants in error.

No. 77.

Supreme Court of the State of Georgia

JULY TERM, 1855.

Trespass, in Muscogee Superior Court. Tried before Judge Worrell, at December Term, 1855.

Seaborn Jones brought suit against the Water Lot Company of the City of Columbus, for a trespass, in overflowing the water wheels of plaintiff's mill, by erecting and raising a dam below, and causing the water to flow back. Plaintiff claimed under a grant from the State of Georgia, and proved on the the trial the trespass laid. It was also proved that plaintiff's own mill-dam, extended across the river; and without extending across, the mill would be worthless.

The Court charged the Jury, that if they believed that the plaintiff's dam did not extend across the river, his mill was valueless, and he could not recover for overflowing his wheels; and, if they believed it did extend across the river, then itwas erected on land not conveyed by the State to him, and he had no right to recover, except nominal damages for overflowing his land.

The Court declined to charge the following requests:

1. That if plaintiff erected his dam on the land belonging to the State, he was accountable only to the State, and that it did not justify defendant's trespass.

2. That the plaintiff could recover for a trespass to property in his possession.

3. That the charter of the defendants did not authorize the erecting of a dam and the trespass on plaintiff.

The charge given, and the refusals to charge, are the errors assigned in this Court.

A motion was made for a new trial, on the ground that the verdict was contrary to the charge of the Court, in this: that the Court charged that they should give the plaintiff nominal damages, when the Jury found for defendants. The Court ordered a new trial, unless defendant would pay the plaintiff nominal damages and the cost; whereupon, defendants tendered the plaintiff one dollar for damages, and seven dollars and fifty cents costs, which he declined to receive.— The Court refused a new trial, and this is also assigned as error.

S. Jones, for plaintiff in error.

J. Johnson, for defendant in error.

By the Court.—Lumpkin, J. delivering the opinion.

The plaintiff is manifestily entitled to a new trial in this case. It was not disputed but that he was entitled to recover nominal damages, at least, for the overflowing of his land by the erection of the defendant's dam; and so the Court charged the Jury. A verdict was, notwithstanding, rendered for the defendant; whereupon, the presiding Judge put the defendants upon terms, namely: that if they wouldpay nominal damages and cost, a new trial would not be granted. One dollar as damages, and seven dollars and fifty cents costs, being tendered in open Court and refused, a new trial was refused.

The Court had no right to impose such terms. It is not unusual, where a verdict has been recovered for too much, to require the plaintiff to remit the excess to avoid another trial; but we know of no practice to justify the case before us. Indeed, it is obviously against principle. What right has the Court to determine what the nominal damages shall be? Whether one dollar or five dollars?

But, waiving this view, there is another objection to this proceeding, which is insuperable. The plaintiff was entitled to a verdict, because it established his right; and the Court had no power to deprive him of this advantage; one which would serve to answer many valuable purposes.

But we go further: In our judgment, the law of the case, generally, was misapprehended. In Young vs. Calhoun & Harrison, (6 Ga. Rep. 130, 141,) this Court held, that grants of...