Little v. Stanback
| Citation | 63 N.C. 285 |
| Court | United States State Supreme Court of North Carolina |
| Decision Date | 31 January 1869 |
| Parties | JOHN P. LITTLE v. PRESLEY STANBACK. |
Instructions to a jury, that if a plaintiff sustains no injury from the ponding of water upon his mill wheel, still he is entitled to nominal damages, are correct.
Where a petition under the statute, [Rev. Code, ch. 71, s. 8] for damages caused by the erection of a mill upon the stream below, described it as a ““grist mill;” without calling it a public mill, or a grist mill grinding for toll, held, to be sufficient.
The mere raising of a stream within its banks, although it is not thrown out of them, is sufficient to support an action for injury to land through which it runs.
PETITION, to recover damages caused by the erection of a mill, tried before Buxton, J., at Fall Term 1868 of the Superior Court of ANSON.
Upon the trial, the defendant's counsel asked the Court to charge the jury, that if the water backed, by the dam below, upon the wheels of the plaintiff's mills produced no injury to the plaintiff, the latter was entitled to no damage. The Court declined so to charge, and instructed the jury that in such case the plaintiff would be entitled to nominal damages.
Verdict for the plaintiff; Rule for a new trial; Rule discharged; Judgment, and Appeal.
Person and Fowle & Badger, for the appellants .
Strange and R. H. Battle, Jr., contra .
The statute provides that “any person conceiving himself injured by the erection of any grist mill, or mill for other useful purposes, may apply by petition to the Court of Pleas and Quarter Sessions for the county in which the land is situate, setting forth in what respects he is injured by the erection of the mill, &c.” Rev. Code, ch. 71, s. 8.
Under this statute any one whose land is injured by the erection of such a mill, may recover damages for the injury to the land, and also for incidental injuries,--as, to the health of his family, to his machinery, &c.
The parties went to trial before the jury upon the single issue, “Is the plaintiff damaged by the erection of the mill of the defendant; and, if so, what is the extent of the damage?” The issue is not as specific in terms, as it might have been, but no other was asked for, and no objection made by either party.
“The defendant asked his Honor to charge the jury, that, if there was water backed by the defendant's dam on the plaintiff's wheel, and it produced no injury to the plaintiff, the plaintiff was entitled to no damages, and their verdict should be for the defendant.”
His Honor declined to give the instructions,...
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