Polly v. McCall , 37 Ala. 20 ( 1860 )

STONE, J.

The circuit court did not err, in admitting-evidence of the admissions of the defendant Polly. The facts-which the admissions tended to prove were material,. and, as against the defendant Polly, we can perceive no reason for excluding them from the j.ury. — Palmer v. Severance, 9 Ala. 751 ; Falkner v. Leith, 15 Ala. 9 ; Goodman v. Walker, 30 Ala. 500.

[2.]' Neither did the court err, in admitting oral testimony of the written notice served in this case. This fact was collateral to the issue — was not necessary to the plaintiff’s success in the suit, either in consequence of any requirement of the law, or of the pleadings in the cause. This case, then, is within the exception to the general rule in regard to the proof of writings. — Dumas v. Hunter, 30 Ala. 75 ; 1 Greenl. Ev. § 561; 2 Phil. Ev. (ed. 1849,) 225; 4 ib. 433.

[3.] In cases where there is no secrecy in the transaction, holding adversely, independently, and as of right, are not very distinguishable from each other. The real point of distinction is between a tolerated, or permissive user, and one wdiicli is adverse, or as of right. The former does not mature into a title by prescription ; while the latter, if continued by actual adverse enjoyment for a period corresponding with that which is prescribed in the statute of limitations in reference to the right of entry upon land, will confer an absolute right.

There is another point presented by the evidence in this record, which we feel it our duty to notice. The record informs us that, although the ditch and levee, from the time they were placed there, diverted the water from its accustomed channel; and although some portions of water, in times of great floods, flowed on the lands of Mrs. McCall, yet no damage was actually done to the lands in controversy, until the year 1857. 'There is a wide difference, between the act of sinking the ditch, and the ultimate result, viz., the flooding of Mrs. McCall’s land. The one was, in itself, rightful, because it was on the lands of Mm under whom defendants derive their title. The use of the ditch and levee, per se, needed no prescriptive right to uphold it*. The consequential result — the injurious flooding of the lands of plaintiff — did not confer a right of action, until tlie injury actually occurred., Till'then, the user iu its'; injurious sense diiPnot begin. A partial, harmless flooding, although exercised of right, could not, by,prescription, ripen into a right to flood Mrs. McCall’s lands more extensively and injuriously. The wrong, for which damages are recoverable, is the actual injury to the plaintiff’s land, not the remote cause from which that injury .resulted many years afterwards.

[4.J In the case of Roundtree v. Brantley, (34 Ala. 544,); most-of these questions are considered and settled. It is also there ruled, -that the statute of limitations in this action is one year.—See, also, Angell on Water-Courses, §§ 216 to 224, inclusive; Ang. on Lim. § 390 ; Mebane v. Patrick, 1 Jones’ Law, 23; Ingraham v. Hough, ib. 39;-Esling v. Williams, 1 0 Barr, 126; Brown v. Cockrell, 33 Ala. 38; Felton v. Simpson, 11 Ired. Law, 84; Campbell v. Smith, 3 Halst. 140; Sargent v. Bullard, 9 Pick. 251; Brown v. King, 5 Metcalf, 173 ; Tyler v. Wilkinson, 4 Mason, 397 ; Bullen v. Runnels, 2 N. H. 255 ; Middleton v. Greogrie, 2 Rich. Law. 631; Trask v. Ford, 39 Me. 437 v. Campbell v. Wilson, 3 East, 294.

[5.] The circuit court was right, in telling the jury that "they could not allow damages for injuries which accrued after the commencement of the suit.—See Shaw v. Etheridge, 8 Jones, 300; Harper, 276; Langford v. Owsley, 2 Bibb, 215. But the court did not err, in admitting evidence of injury after the commencement of the'suit, with the view of affording information to the injury of the consequences of the diversion under similar circumstances before the suit—Stein v. Burden, 24 Ala. 147.

[7.] One portion of the affirmative charge given and excepted to, was, at least, calculated to-mislead, if given-without explanation. We allude to that part which asserts, that, to establish'a right by prescription, the burden was on-the defendant of showing affirmatively that the act of flooding the plaintiff’s' land was done as of right. There was, it is true, evidence which tended to repel the idea that the flooding..®!- pláintiff’s land' was done -as of -right,. 'But it was for the jury, to determine wliat facts were proved. We bold, that where one land-holder, by a ditch-and levee on his own lands, diverts water, and throws it on-the lands of another to his injury; and this injury continues, without increase, for ten years; and there is no evidence on the question whether such user is-permissive or otherwise,— the jury may, without further proof, infer that the use was adverse, and as of right. This question, however, must -depend much on the nature of the use, whether exclusive, &c. Many cases may be supposed — such as the use, with others, of a private way, or of a fishery — in which, doubtless, some proof would be required that the use was adverse, or as of right. — See Brown v. Cockrell, supra. Subject to this criticism, the affirmative charge was free from error.

The first charge asked was rightly refused. If given, the defendants would have been entitled to a verdict, notwithstanding the jury may have been convinced by the evidence that the author of the nuisance had given repeated and continuous assurances that the nuisance should be abated ; and notwithstanding the injury may have been, for several years, slight and inconsiderable, and then have become grievous and oppressive..

The second charge asked should have been given. The injury complained of was the damage to plaintiffs land, not the cause which produced that injury. Injury, in legal contemplation, is an effect — not a cause.

[7.] It is contended for-appellee, that, if in refusing this charge the circuit court erred, it was error without injury; for the same legal principle which this charge asserts, was expressly affirmed by the court in another part of the charge to the jury. This seems to have been the case ; and we regret, under the circumstances, that we feel it our duty to send this case back for another trial. The statute, however, is positive. Its language is — “ § 2355. Charges moved for by either party, must be in writing, and must be given or refused, in the terms in which they are written ; and it is the duty of tlie judge to write ‘ given’ or ‘refused,’ as the case may be, on the document, and sign his name thereto.; which thereby becomes a part of the record, and may be taken by the jury with them on their retirement.” This section secures to parties certain rights, and also operates a protection to the court and the parties against errors of memory. Among the rights secured to the party who requests the charge, are— 1st, that he can have the charge given in his own language, if the charge express a correct legal principle, and be not abstract; 2d, that he can claim that charges thus moved for, shall be carried by the jurors with them in their retirement. We should deprive parties of these rights, if we held the doctrine of error without injury applicable to such a case as this. We have no authority to sanction a practice, which would, in effect, abrogate the statute in many cases.

Reversed and remanded.