Rohwer v. Chadwick

• Decision Date: 01 July 1891
• Citation: 7 Utah 385,26 P. 1116
• Court: Utah Supreme Court
• Parties: ANNA C. ROHWER, RESPONDENT, v. ABRAM CHADWICK, AND OTHERS, APPELLANTS

26 P. 1116

7 Utah 385

ANNA C. ROHWER, RESPONDENT, v. ABRAM CHADWICK, AND OTHERS, APPELLANTS

Supreme Court of Utah

July 1, 1891

APPEAL from a judgment of the district court of the first district and from an order refusing a new trial. The opinion states the facts.

Reversed and remanded.

Messrs Kimball and Allison, for the appellant.

Messrs Smith and Smith, for the respondent.

BLACKBURN J. ZANE, C. J., and ANDERSON, J. concurred.

OPINION

BLACKBURN, J.:

This suit is brought on an injunction bond. The injunction was issued and served 23d of October, 1889, and dissolved April 6, 1890. Trial before a jury and verdict and judgment for plaintiff for $ 208. Defendants moved for a new trial, which was overruled, and they excepted, and appealed both from the judgment and the overruling the motion for a new trial, and assigned many errors, but they may all be condensed into two,--that plaintiff was allowed to give evidence of and recover for special damages, when the complaint only alleged general damages; and that the evidence does not support the verdict. The evidence tended to prove that plaintiff lived on Fisher creek; had a farm there; used the water of the same for irrigating purposes on her farm, to irrigate her meadow land and her crops and garden and orchard and shade-trees, also for domestic purposes, and to water her stock; that the water was needed on the meadow during the winter season; that she had no other supply of water for her domestic use; that she had to carry water for her home use a half a mile, from October 23, 1889, to April 6, 1890, and to go to her neighbors to wash her clothes, because of said injunction; that her trees had to do without water, and her stock to roam for water; that she had chickens and cows and horses and young cattle that had been accustomed to get water from Fisher creek during the winter season, and she had also to haul water on account of the prohibition of said injunction,--to all of which testimony the defendants objected, because it only tended to prove special damages. The objection was overruled, and exception taken.

No estimate of the amount of damages was made by the testimony in the case. This testimony was given substantially by several witnesses, and all objected to. The contention of the defendants is: (1) This testimony only tends to show special damages; and, (2) as no estimate of the damages was given by any of the witnesses, the judgment should have been for nominal damages only. The court instructed the jury that they could only render a verdict for general damages, and that general damages were those that naturally resulted from the injury. The first inquiry therefore is, is this evidence admissible?

Sutherland on Damages (volume 2, p. 69) says (on injunction bonds) these damages are ascertained and measured on the principle of giving just and adequate compensation for actual loss which is the natural and proximate result of the injunction. The rule is that, "under a general allegation of damages, the plaintiff may prove and recover those damages which naturally and necessarily result from the act complained of." 1 Suth. Dam. p. 763. This rule seems to be the general rule, and in reference to it there is no conflict of authority. Applying this rule, this testimony was proper, for it tended to show that the trouble and labor of getting water by the plaintiff was the natural...