Green v. Gilbert , 60 N.H. 144 ( 1880 )

The evidence that the deposit of the sawdust on the plaintiff's land was caused by his improvement of his land and his use of his dam, was admissible. The use made of the stream by each party, and all the causes of the damage, were facts, to be considered on the question whether the defendants' use was reasonable. Hayes v. Waldron, 44 N.H. 580.

From the plaintiff's commendation of the ingenious contrivance for conveying the sawdust to the river, before 1873, accompanied by no complaint of injury, might be implied his admission that such a disposition of the dust was then a reasonable use of the stream. And what was admitted to be reasonable before 1873 was evidence on the question of subsequent reasonableness. The plaintiff's new use of his own land and the stream in 1873 might tend to show that the defendants' previous and unchanged use became unreasonable in 1873: but the reasonableness of the defendants' previous use was not rendered immaterial as evidence, by the change in the plaintiff's use. Whether the defendants' use; previously reasonable, became unreasonable in 1873 was a question of fact depending upon the circumstances of the case, including the defendants' benefit and the plaintiff's damage. Hayes v. Waldron, supra. The plaintiff's admission of the propriety of the defendants' use before 1873 would tend to reduce the broad issue of reasonableness to the narrower question whether it was reasonable that the defendants' old use should be discontinued on the introduction of

There would have been no error of law in allowing Libby to testify that that could be done which he testified he had done; but his opinion would have added nothing to the testimony he gave.

The requested instruction was properly refused. Hayes v. Waldron, supra.

Judgment on the verdict.

BINGHAM and SMITH, JJ., did not sit: the others concurred.