Tucker v. Salem Flouring Mills Co.

• Decision Date: 27 April 1885
• Citation: 13 Or. 28,7 P. 53
• Parties: TUCKER v. SALEM FLOURING MILLS CO. and another.
• Court: Oregon Supreme Court

7 P. 53

13 Or. 28

TUCKER v. SALEM FLOURING MILLS CO. and another.

Supreme Court of Oregon

April 27, 1885

Shaw &amp Burnett and T.I. Ford, for appellants.

Bonham & Ramsey, for respondent.

THAYER J.

This appeal is from a judgment of the circuit court for the county of Marion, rendered in an action in favor of the respondent and against the appellants, for damages to real property caused by turning a supply of water from the Santiam river into what is known as "Mill Creek," thereby causing the waters thereof to overflow its banks and inundate about 50 acres of the respondent's farming lands, and which caused it to remain too wet for the purposes of husbandry for the two years next prior to the time of the commencement of the action. The case was tried by a jury, and resulted in a verdict for the respondent for the sum of $500, upon which the judgment appealed from was entered.

The appellants have assigned several matters as error, upon which they insist that the judgment should be reversed. The first point is that the respondent was permitted to show that his land was overflowed by a slough, through and into which the waters of Mill creek had been turned by a party named Turner. This evidence was objected to, upon the grounds that it was alleged in the complaint that the damage was caused by the overflowage of Mill creek instead of this slough, and that said Turner had occasioned it, and not the appellants. The statement in the bill of exceptions is so general that this court cannot determine, with any degree of certainty, as to the competency of the evidence. If the respondent's land was overflowed in consequence of the act of Turner, and not of that of the appellants then it was error to allow proof thereof to be given in order to establish a liability against the latter. But it is not shown where or under what circumstances the water had been turned into the slough, nor how that affected this case. For all that appears, Turner may have been acting for and under the direction of the appellants when he diverted the water from the creek into the slough. And the overflow may have been occasioned by the amount of water the appellants turned into Mill creek from the Santiam river. The fact that the water ran from the slough into the respondent's land, instead of running directly from the creek, was immaterial. The variance between the testimony and the allegations of the complaint in that particular could not have prejudiced the appellants. There may have been error in admitting the evidence, but it does not so appear. Error must be affirmatively shown. The presumption is that a judgment has been regularly recovered. In order to overcome such presumption in this case, the appellants must show from the record that the overflow of the water complained of was caused by Turner's diverting it, and not in consequence of their turning water from the Santiam river into the creek.

The second point is that witnesses were allowed to testify that the respondent's land, alleged to have been damaged, was flooded and damaged by the appellants prior to the two years alleged in the complaint. This exception is subject to the same difficulty as the former one, in not being explicit. The testimony as to the overflow of the land would necessarily be directed to the fact as to when it took place. It might have occurred two or five years prior to the time of the commencement of the action. However that may have been, the respondent, under his complaint, could only recover damages which it had occasioned during the two years next preceding that time; and if the court permitted him to recover for damages to the land accruing prior to that period, it would have been error. But it does not necessarily follow that because the court allowed evidence showing that the land was flooded and damaged prior to the two years, that the respondent was allowed to recover for such damages. Such evidence may have been, and doubtless was, permitted as a part of the respondent's general evidence in the case and not with a view of recovering damages in the action. When such evidence got into the case, the court should have been requested to instruct the jury not to consider it in making up their verdict; and the court very likely did so instruct, without being requested. Again, it is not shown to what extent the evidence of such damages was allowed to be given. It may only have shown nominal damages. In that case it would not have been of sufficient importance, in any view, to require a reversal of the judgment; it would only have added a nominal sum to the amount of the recovery, which the law would not regard, upon the maxim, de minimis non curat lex.

The third point relates to an instruction of the court to the jury that a verdict should be found for the respondent if it appeared from the testimony that the appellants had,...