Finkbinder v. Ernst ( 1903 )

Grant, J.

(after stating the facts). Under this judgment the defendant may maintain his dam perpetually, thus throwing all the waters accumulating to the east thereof onto the plaintiff’s land, who, upon payment, will be compensated for the permanent injury to his farm.

The main contention on behalf of the defendant is that there was no evidence to support the charge. He insists that there is no evidence tending to show that any water ever flowed upon defendant’s premises, except occasionally, and that such water is carried upon and over defendant’s land by a three-inch tile drain, and that there is no evidence tending to show that the change in the original channel came about by natural causes, but that it was caused solely by cultivation of Mr. Hotrum’s land". Two juries have rendered verdicts for the plaintiff. The learned circuit judge, after the second trial was concluded, entertained a motion for a new trial, in which motion all the points now raised were alleged as error, and carefully considered by the judge. Perhaps the weight of the evidence is with the defendant, but there is conflicting testimony upon all the material points. It is true that Mr. Hotrum, a witness for the plaintiff, testified that he supposed the change in the watercourse came about from ordinary cultivation. It also appears thatthe soil is sandy, and the defendant himself testified, “You could change its course with a boot-heel. ”

We do not deem it essential to review the testimony. It would serve no good purpose. It is sufficient to say that upon all the points there was conflicting evidence. Its weight was for the jury. While we might come to a different conclusion as to the weight of the evidence than did the circuit judge,'yet we do not think this a case in which we should order a new trial for that reason.

Counsel for defendant assign error upon the., refusal of the court to give several requests which they preferred in his behalf. Inasmuch as no exception to such refusal was taken upon the trial, they cannot now be considered. Runnells v. Village of Pentwater, 109 Mich. 514 (67 N. W. 558); Banks v. Cramer, 109 Mich. 168 (66 N. W. 946).

Counsel also allege error upon rulings upon the admission of testimony. No exceptions were taken to the rulings, and they cannot, therefore, be considered.

Judgment affirmed.

Moore, Carpenter, and Montgomery, JJ., concurred. Hooker, C. J., took no part in the decision.