Wood v. Richardson ( 1868 )

By the Court, Sawyer, C. J.:

The only point made in appellant’s brief is the refusal of the Court to give to the jury the fourth instruction asked by-the plaintiff, which is in the words following:

“ That the defendants in their answer have not denied the allegation of plaintiff’s complaint, that the defendants caused tailings to flow upon the land of plaintiff, and the jury are bound to consider it as an admitted fact that defendants did cause tailings to flow upon plaintiff’s land.”

The vice in the instruction consists in the use of the words “upon the lands of the plaintiff” and upon “plaintiff’s land.” The answer distinctly takes issue upon the title or ownership of the land. It both denies' the title and ownership of the plaintiff, and alleges title and a right in defendants to flow the tailings upon the land described in the complaint. The answer may be construed, and perhaps intentionally so, as admitting the flowing of tailings upon the land; but it denies that this was wrongfully done. The instruction not only states that the flowage upon the land described in the complaint is admitted, but also assumes, and in terms declares, that the land is the “ land of the plaintiff”—“ the plaintiff’s land ”—and in effect, if literally construed, takes the question of the ownership of the land, the title of the plaintiff, from the jury. The title, however, was directly put in issue, and the instruction, in this particular at least, is objectionable and liable to mislead the jury. We think the Court properly refused the instruction in the form presented.

Judgment and order denying new trial affirmed.