Maguire v. Baker , 57 Ga. 109 ( 1876 )

Warner, Chief Justice.

The plaintiff brought an action against the defendants to recover damages for overflowing his land by the erection of a mill-dam. On the trial of the case, the jury, under the charge of the court, found a verdict in favor of the defendants. The plaintiff made a motion for a new trial on the grounds set forth therein, which was overruled by the court, and the plaintiff excepted. There was a great deal of evidence introduced on both sides, which was conflicting, and the only questions for us to consider are the alleged errors in the rulings of the court.

1. It is insisted that the court erred in allowing Edmond Lee and others, to testify that the eleven acres of land alleged to have been overflowed were not included in the deed made by the executor of Zachary Lee to the plaintiff, inasmuch as the deed was the highest evidence. The land conveyed in the plaintiff’s deed was described by metes and bounds, and the evidence was admissible to show that the land was not included within the boundaries specified in the deed. When land is described by metes and bounds in a deed or deeds, it is not error to allow evidence to be introduced for the purpose of showing that the particular plat or tract of land in dispute between the parties is not covered by, or included within, the boundaries specified in the plaintiff’s deed or deeds.

2. If the plaintiff did not in fact purchase the eleven acres of land from the executor of Lee, and afterwards purchased the same from other persons who had purchased it at the executor’s sale, with the mill privileges, with knowledge that he had no title under his first purchase, he could not set up his title thus acquired against the other title under which the defendants claimed, and there was no error in the charge of the court in relation to this point in the case.

3. There was no error in the charge of the court as to the height of the new dam, but, on the contrary, that charge was in accordance with the ruling of this court in this same case: See Baker et al. vs. Maguire, 53 Georgia Reports, 245.

4. There was no error in the refusal of the court to charge, as requested, in relation to the defendants having lost their right to overflow the plaintiff’s land to the extent of the height of the original dam, by reason of their not having done so within seven years. There was no evidence of any intention on the part of the defendants, and .those under whom they claim, to abandon the right to back the water to the extent of the height of the dam; whilst it may be true that they did not raise the water to the full' height of the dam, as they were entitled to do, still the dam was there and being used, which was notice to the plaintiff that the defendants’ had not abandoned the use of it for the purpose for which it was originally erected.

5. Besides, the charge, as requested, assumes that the plaintiff had color of title to the eleven acres of land, whereas it was a disputed question whether the deed from the executor of Zachary Lee to him covered the eleven acres of land in controversy.

,6. There is sufficient evidence in the record to sustain the verdict, and we will' not disturb it.

Let the judgment of the court below be affirmed.