Stein v. Ashby , 30 Ala. 363 ( 1857 )

NICE, C. J.

Tbe law as declared in this ease when it was formerly here, is tbe law of it now. — Stein v. Asbby, 24 Ala. 521; Kimball, adm’r of Jones, v. Miller, 29 Ala. 174.

The plaintiff then claimed, as be now claims, under a patent dated 1st March, 1850, for subdivision north of Chataque, (or Three-mile creek,) of tbe south-east quarter of section twelve, township four, south, in range two, west. Tbe defendant insisted then, as be does now, that tbe title to tbe land bordering on tbe north side of tbe creek was in the city of Mobile; and to support that position be then relied, as be now does, on a patent from the United States to tbe city, dated 20th March, 1834, for tbe south-east subdivision B of fractional section twelve, in township four, south, range two, west. This court then decided, that “tbe plaintiff was entitled to all the land in tbe quarter-section north of tbe creek.”

It is again insisted by tbe plaintiff in error, as was done when tbe case was here at tbe former term, that tbe division of tbe quarter-section, as made by tbe surveyor-general, is void, as being in contravention of tbe acts of congress in relation to tbe survey of tbe public lands ; and that tbe patent, calling for a subdivision thus made, is illegal and void. We are constrained, however, -to hold the law laid down in tbe former opinion of this Court as decisive of this question, and not now open for revision.

It being thus settled that the title to the land in dispute is in the plaintiff; and the bill of exceptions expressly stating, that “the proof tended to show a diversion of water by Stein, to the injury of the mill privileges of the plaintiff, provided plaintiff’s land or possession extended to the creek as it actually runs, or, if it run down into section 13 as shown in diagram I), provided Ms title or possession extended to the creek where it actually runs so far as its bed lies in section 12it is clear that the first and third charges were fully as favorable to the defendant as they should have been, and that he could not have been injured by them.

He excepted to the second charge, “on the ground that it was abstract; insisting that there was no evidence tending to show the actual possession by plaintiff of the land on or near the creek within the disputed territory.” He was not under any obligation to confine his exception to that charge to the single ground specified by him ; but, as he elected to do so, the court will confine him to that ground, and hold that he has waived all other gronnds. Creagh v. Savage, 9 Ala. 959; Morrison v. Wright, 7 Porter, 67. Conceding the charge to be abstract, but unobjectionable in all other respects, the defendant is not entitled to a reversal, because, under the former decision of this court in this case, and the evidence in the present record, it is plain that no injury to him could have resulted from the fact that the charge was abstract. It is settled, that an abstract charge, from which it is clear no injury results to the party excepting to it, furnishes no ground for reversal of the judgment. — The State v. Shuessler, 3 Ala. 419; Partridge v. Forsyth, 29 Ala. 200.

Although such is the law, as to an abstract charge actually given; yet it is settled, that the court is never bound to give an abstract charge. The refusal to give such charge is not erroneous. The only issue to be tried by the jury in this case, was the one joined upon the plea of not guilty. Under that issue, and the evidence set forth, in this record, it was wholly immaterial for the jury to consider, whether the plaintiff, owning land on only one side of the stream, had sued out a writ of ad quod damnum, and condemned any land on the opposite side of the creek, or not. The defendant does not appear to-be entitled to have that question tried in this case, and there was no error in refusing the charge asked by him. Hendrick v. Johnson, 5 Porter, 208.

The plea jms darrein continuance professes to be ‘tin bar of this action but it certainly is not a bar as to the damages sustained by the plaintiff from the wrongful diversion of the water from the creek, prior to the commencement of this suit, and prior to the issue of the writ of ad quod dam-num mentioned in the plea. There was no error in sustaining the ■ demurrer to that plea, for it professes to answer the whole declaration; and if it be good at all, it is only an answer as to part of the declaration. — Deshler v. Hodges, 3 Ala. 509; Bryan v. Wilson, 27 Ala. 208.

We do not notice the other pleas, to which it is said a demurrer was sustained, further than to say, -that if a demurrer was sustained to them, the former decision in this case was, that there was no error in that respect.

We find nothing which entitles the defendant to a reversal; and the judgment of the court below is affirmed.