Lynn v. Thomson
| Decision Date | 13 April 1882 |
| Citation | 17 S.C. 129 |
| Parties | LYNN v. THOMSON. |
| Court | South Carolina Supreme Court |
1. The issue being whether a mill-dam injured lands of the plaintiff lying higher up on the same creek, evidence of the effect of the removal of dams from other creeks in another county upon the lands situated on those streams was properly excluded.
2. Whether a question asked a witness is relevant to the issue must, in great measure, be left to the discretion of the trial judge, with the burden upon him who asks it to show that it is relevant.
3. Under an issue involving the raising of a dam, the declarations of the builder, who died ante litem motam , as to the height of the dam are incompetent.
4. The admission of the owner of a dam that it had been raised, and his promise to restore the former height when another dam was built, does not prevent a prescriptive use in favor of the increased height, as against other persons than him to whom the admission and promise were made.
5. Where, in action for damages caused by a mill-dam, plaintiff brings out testimony of an offer, made by him to defendants just before suit, to purchase the dam for the purpose of destroying it, there is no error of law on the part of the judge in charging the jury that this offer was strong as an acknowledgment of defendants' right to maintain their dam as it then stood; nor was it a charge upon facts in violation of the constitution. Art. IV. , § 26.
6. The charge upon other matters in this case held not to be in violation of this provision of the constitution, as not a charge upon facts in issue, but a statement of inferences deducible from undisputed facts.
7. The judge charged the jury that the use of a dam for twenty years gave a prescriptive right; but the charge as a whole showed that by " the use of a dam" he meant an adverse use to the injury of plaintiff's land from the back-water caused by the dam. Held , no error.
8. He also charged the jury that if the dam caused a filling up at the head of the pond, and such filling caused the injury, the defendants were not liable Held , no error.
9. He also charged the jury that plaintiff could not recover for injury done to his land within the past twenty years, if other appreciable, though less, injury had been done to the same land, or other portions of the same, or contiguous land, for more than twenty years. Held , not erroneous.
Before THOMSON, J., Union, October, 1879.
Action by Mathew S. Lynn against J. S. R. Thomson, Wade Fowler, and J. C. Spears for damages done to the plaintiff's lands within the past twenty years by a dam which had existed for a century, and also for damages for injuries resulting from the raising of the dam. The answer denied the injury and the raising, and alleged that if these lands were at all injured they had been injured as much or more for more than twenty years. The action was commenced August 14, 1877.
The opinion sufficiently states the facts upon the four points first considered by this court. There was a conflict of testimony as to the condition of plaintiff's lands for the sixty years preceding action brought, whether in better or worse condition, and whether injuries now done were or were not done more than twenty years ago. Expert witnesses differed as to the causes of injury, of the filling up of the creek, etc. There was also conflict as to the height of the dam built in 1869 as compared with other dams which preceded it, and as bearing upon this point there was a conflict as to where the head of the pond was at the first trial.
His Honor charged the jury that a man cannot, by our law commence an action for overflowing his land until he is injured. When was plaintiff injured here? When the water began to sob the land from the channel; plaintiff could have sued when the land began to be in a sobbed condition. Though this condition may not have been apparent at first, still the question is, When did this sobbing begin? Whenever that began which the plaintiff calls the injury the right of action accrued. That from such time it is adverse possession. That if Hope or Thomson or anybody else was in possession of the use of the dam in this case for twenty years, they thereby acquired a prescriptive right to use a dam at same place, at same height, and to same extent as the one so used for twenty years. That if water was backed by this dam as far back as the canebrake for twenty years, the dam-owners had an indefeasible right to keep it there, no matter what results followed. That mill-owners had rights as well as land-owners. That dam might say to the stream: You are going to fill me up with sand. That owners of dam could say: We have a right that you shall not fill us up with sand. That the owners of the dam had a prescriptive right that the dam should not be filled with sand brought down in the stream above. That if land-owners above cleared and cultivated their lands, whereby sand was washed down into the creek and accumulated at the head of the pond, and thereby injured plaintiff's lands that defendants were not responsible for such injury, although such accumulation would not have occurred in the absence of the dam. That if the waters expanded and were extended by accumulation of sand and not by act of defendants, then the jury must find for the defendants. That there was proof that the head of the dam had been at the same place for some forty years before the last trial. That prescriptive rights began to run in favor of dam-owners from time the land above was sobbed by water, so that injury accrued therefrom as against such land-owner. That the offer made by plaintiff and others to defendants, just before this action, to buy out the dam and mills and ten acres of land on each side of the creek, accompanied with the statement that if their offer was accepted it was their purpose to tear out the dam, was strong as an acknowledgment by parties making it of right of defendants to keep the dam as it then stood. He said to the jury,
The requests to charge made by plaintiff and refused by the judge were as follows:
4. That until appreciable injury to plaintiff's lands results, and thus a right of action arises, there can be no prescription in favor of the dam or its effects upon the water above. This he qualified by saying that it would be so in a new case, but that where a prescriptive right is acquired, to that extent it may be kept.
7. That twenty years of user affords a presumption of a grant of license or easement only to the extent and in the state to which there was enjoyment for the whole twenty years; and if any lands of plaintiff have been injured by back water, caused by the dam for the first time within twenty years before action brought for the damage to such lands, plaintiff is entitled to a judgment, although other lands of the plaintiff were injured more than twenty years before action brought. This request in its first sentence was granted, but the remainder as asked was refused, and the jury were instructed that if the lands were contiguous and all belonged to one individual, that injury to one part was injury to all; but if in separate tracts, injury to one tract was not injury to the other tracts.
8. That prescription is only coextensive with the injury done- tantum prescriptum, quantum possessum . This request was granted, with the remark that a prescriptive right was gained to the extent of the possession, when the possession was of that character for which an action could be brought as before stated in this charge.
9. That if plaintiff's lands were injured by defendants' dam for a greater period of time than twenty years, and such injury ceased to exist for more than a subsequent period of twenty years, and the same or other injury again commenced within twenty years before action brought, that the prescription gained after the first twenty years was lost by non-user during the subsequent period of twenty years, and there is no prescription now. This request was granted, but qualified by the additional remark that there would be no non-user if the dam was used.
10. That the plaintiff had a right at any time to dig a ditch in his bottom lands to drain them; that if such ditch was dug and has been rendered useless by back water caused by defendants' dam within twenty years since, that plaintiff is entitled to his damages, if any, from such back-water, although the water may have been for more than twenty years thrown back by said dam as far and as high as when the ditch was rendered useless. This request was refused.
The following requests of defendant were granted:
1. If the jury find that the land now owned by plaintiff has been injured to some extent, however little, if apppreciable, for the entire period of twenty years next preceding the bringing of this action, then the fact that the land is now injured to a greater extent than before does not give the plaintiff the right to recover damages unless the greater extent of injury is caused by defendants' raising their dam, or the water in the dam, by means other than ordinary repairs. This request was granted.
2. If the foregoing stated increased injury does exist, but defendants have not raised their dam, then this increase of injury does not entitle plaintiff to recover damages. This was granted.
6. In no event has the jury a right to give damages upon a finding that the removal of the whole of the dam would benefit plaintiff's land. This was granted.
13. If the jury are satisfied as last above, and that the owners of the dam, now owned by defendants, have, for twenty consecutive years, kept up a dam of the same height and kind as the present one, and...
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