Lawson v. Price

• Decision Date: 16 June 1876
• Citation: 45 Md. 123
• Parties: JAMES U. LAWSON v. LEVI PRICE.
• Court: Maryland Court of Appeals

45 Md. 123

JAMES U. LAWSON v. LEVI PRICE.

Court of Appeals of Maryland

June 16, 1876

APPEAL from the Circuit Court for Frederick County.

Defendant's First Exception.--The plaintiff offered in evidence to prove his title to the race in question, sundry deeds, and then proved by Levi Price, the plaintiff, that he owned the distillery mentioned in the nar.; that the race runs through the land of the defendant nearly the whole length of the race, and is from two to four feet wide at bottom, and from five to six feet wide at top, and is about 600 feet long; that it has no dam except a few logs put across the stream to turn the water in the race; that prior to January, 1872, there was a strip of woods along the race from fifty to one hundred and fifty yards wide, and timber on both sides of the race; that prior to January, 1872, he had water enough from this race to do the work at the distillery, and that the water passed freely along the race except when the defendant made crossings over the race and places for watering his stock, by driving down stakes to prevent hogs from going up or down the race; that the water was in a great measure his power to grind and mash and do the work at the distillery; the plaintiff then asked the witness "what was the ordinary capacity of your distillery prior to January, 1872?" To this question the defendant objected, but the Court overruled the objection and permitted the question to be asked and answered, and the defendant excepted.

Defendant's Second Exception.--After the aforegoing bill of exception made a part of this, had been taken, signed and sealed, the witness stated that the capacity of his distillery was from 90 to 105 gallons a day prior to January, 1872; and then proved that from January to July, 1872, the race was obstructed, and that the plaintiff had seen said obstructions there frequently during that time but did not know who put them in the race, he saw Lawson's hands cutting timber; that the defendant was during that time clearing his timber land on the opposite side of the race; plaintiff saw Lawson's hands cutting timber, and that chips, butts, logs, &c., were in the race and trees across the race, that afterwards the cleared land was planted in tobacco, that the obstructions came from clearing timber, and ploughing too near the edge of the race; that he, the plaintiff, cleaned the race out in October, 1872, at a cost of $30, that he was obliged to use from January to June, 1872, his engine more than usual in consequence of the obstructions, and this required him to consume $100 worth more of fuel than he had ever done before, that the water power was reduced four-fifths by these obstructions from January to June 24, 1872; thereupon he was asked, "What effect did that reduction of water power have on the manufacturing capacity of your distillery?" to this question the defendant objected, but the Court overruled the objection and permitted the question to be asked and answered, whereupon the defendant excepted.

Defendant's Third Exception.--After the foregoing bills of exception made a part of this, had been taken, signed and sealed, the witness replied that it affected it to such an extent that he could do nothing without the aid of his engine; he was then asked, "To what extent in the production of whiskey as to quantity was the capacity of your distillery affected by these obstructions to the flow of water?" to which the defendant objected, but the Court permitted the witness to answer, whereupon the defendant excepted.

Defendant's Fourth Exception.--After the aforegoing bills of exception made a part of this, had been taken, signed and sealed, the witness replied that it would have diminished it all because he could have made no whiskey without his engine, and he was then asked, "what amount of whiskey did you commonly and usually manufacture during the same period in former years when the race was unobstructed?" the defendant objected, but the Court overruled the objection and permitted the question to be asked and answered, and the defendant excepted.

Defendant's Fifth Exception.--After the aforegoing bills of exception made a part of this, had been taken, signed and sealed, the witness replied, from 23 to 2500 gallons; the witness was then asked: "From the 24th June to the last of July, what kind of whiskey was usually manufactured at your distillery, and at distilleries generally?" The defendant objected, but the Court overruled the objection and permitted the question to be asked and answered, whereupon the defendant excepted.

Defendant's Sixth Exception.--Abandoned.

Defendant's Seventh Exception.--Omitted, this Court having held that it should have been abandoned for the same reason assigned for abandoning the Tenth Exception.

Defendant's Eighth Exception.--After the aforegoing bills of exception made a part of this, had been taken, signed and sealed, the plaintiff proved by S. G. Cockey, that his father formerly owned the farm belonging to the defendant; that he knew the stream which supplied the race in question, and that he never knew it to go dry entirely. The said witness on cross-examination, proved that when his father owned the said farm there were three fences across the race, besides one or two watering places; that the fences did not interfere with the water, but that witness' father put stakes into the race under the fences that crossed it, to keep stock out of the fields; this was a number of years before the defendant bought the farm, and as long ago as the witness could recollect. Upon redirect examination by the plaintiff the witness said, that the stakes would sometimes catch brush and drift. Whereupon he was asked, "What would you do when these stakes collected leaves and drift;" but the defendant objected; the Court overruled the objection, and permitted the question to be asked and answered, and the defendant excepted.

Defendant's Ninth Exception.--After the aforegoing bills of exception made a part of this, had been taken, signed and sealed, the witness replied, in response to the interrogatory contained in the last preceding bill of exception, that "we would take them out," whereupon the plaintiff asked the witness "why did you take them (meaning the leaves and drift spoken of in the preceding bill of exceptions) out?" To this question the defendant objected, but the Court overruled the objection, and permitted the question to be asked and answered, and the defendant excepted.

Defendant's Tenth Exception.--Abandoned, as the question asked did not appear by the record to have been answered by the witness.

Defendant's Eleventh Exception.--Sufficiently stated in the opinion of the Court.

Defendant's Twelfth Exception.--Referred to in the opinion of the Court.

Defendant's Thirteenth Exception.--The defendant asked the Court to instruct the jury as follows:

1. That it was lawful for the defendant to cut timber on his own lands and to clear and cultivate said land, and that if the jury shall find from the evidence that the defendant did cut, or cause to be cut, the timber on his own land, adjoining the race of the plaintiff, and did clear and cultivate said land, and that the defendant was not guilty of negligence in cutting said timber, or causing the same to be cut, or in the clearing and cultivation of said land, that then the plaintiff is not entitled to recover, even though the jury should find that by reason of such cutting or clearing or cultivating, brush, logs or other timber or earth, fell into said race, and obstructed the flow of water therein, and damaged the plaintiff.

2. That it was lawful for the defendant to clear his timber land and to cultivate the same, and if the plaintiff has been injured thereby, his remedy at law depends upon his ability to prove misconduct or negligence on the part of the defendant, or his agents and servants; in order to determine what is such negligence as would subject the defendant to an action at law, it is necessary that the jury should ascertain from the evidence in this cause, whether the defendant had done that which an ordinarily prudent man would not have done, in exercising his right in his own premises, and whether the injury resulting to the plaintiff was the result of negligence or misconduct, or the result of mere accident. If the jury shall find from the evidence that the injury was the result of misconduct or negligence, then the plaintiff is entitled to recover in this action. If the result of accident, then the plaintiff is not entitled to recover. If a reasonably careful man is as careful to avoid injury to his neighbor's property as to his own, it is a fact from which the jury may infer that such negligence did not exist as would subject the defendant to damages for any injury resulting to his neighbor; but if he acted recklessly, and without regard to his own or his neighbor's safety, he would be liable.

3. That if from all the evidence in the cause, the jury shall believe that the defendant cut, or caused to be cut, the timber on his own land, adjoining the race of the plaintiff, and cleared and cultivated said land, and in so doing did not use the diligence that an ordinarily careful man would have used to prevent brush, leaves, earth or other filth arising from said cutting, clearing or cultivating said land by said defendant or his agents, from getting into the race of the plaintiff; and that by reason of the not using of such diligence by the defendant or his agents, brush, leaves, earth, or other filth arising from said cutting, clearing or cultivating of said land by the defendant or his agents, did get into the race of the plaintiff, and shall further believe from the evidence, that the plaintiff, by the use of such diligence as an ordinarily...