Eastman v. Amoskeag Manufacturing Co. , 44 N.H. 143 ( 1860 )

Sargent, J.

It becomes immaterial to consider whether the evidence concerning the state and condition of the stream before the plaintiffs’ possession commenced, would have been competent, had no other title but possession been introduced; because it was afterward made competent by the introduction of the plaintiffs’ deed, which showed not only the extent of the possession but of the right. And were we satisfied that this evidence was incompetent at the time it was introduced, and as the case then stood, concerning which we express no opinion, yet, where the plaintiffs, by the next piece of evidence — their deed — make the evidence objected to clearly competent, we should not set aside the verdict; first, because the court may have admitted the evidence, with the expectation that it would in that way be rendered competent by the subsequent evidence ; and, second, because, however that may have been, we can see clearly that the defendants have not been injured by the ruling.

The objection to the testimony of Farmer is not well founded. Whatever was done or said between him and the company, by way of compromising any controversy between them, was incompetent; but the fact which he says the defendants’ agent admitted to him, namely, that the. defendants flowed his land, we think was competent. His land was on the opposite side of the river from the plaintiffs’ land, and from its location, and the other evidence which we may presume was before the jury in relation to its situation and elevation, as compared with the plaintiffs’ land, we think the fact, if established, that the defendants flowed Farmer’s land,, would be competent, upon the question whether they flowed the plaintiffs’ land, which was a material point in the issue.

As to the testimony of Shirley about his settlement and his receipt, and the testimony of Partridge concerning his settlement, the instructions of the court were also correct. It is not necessary that the fact admitted should be independent of the subject matter embraced in the compromise; but it must be an admission of a fact, relevant to the present issue, as distinguished from an offer to buy peace, or compromise a controversy; Sanborn v. Neilson, 4 N. H. 501; Downer v. Button, 26 N. H. 338 ; and that it was proper to submit the whole transactions and conversations to the jury, with such instructions as were here given, is settled in Bartlett v. Hoyt, 33 N. H. 151.

The copy of the receipt was properly admitted. There is no doubt that the witness, in a case like this, where secondary evidence was admissible, might have stated the contents of the receipt from recollection, had he been able to do so, if he had had no copy. He swears that the paper produced is a copy; and though, on cross-examination, he says he did not make it himself, nor was it made from the original in his presence, or compared by him with the original, he still asserts that it is a true copy, and gives the reason why he is able thus to state. The witness was not asked if he recollected the contents of the receipt, and could state them; but he was asked whether a certain paper presented to him was a copy of the receipt, and if he could swear, as he did, that it was a copy, both on direct and cross-examination, we think sufficient prima facie to make the copy admissible, in a case like this, where the defendants had the original in their possession, and refused to produce it on notice. In such a ease slight evidence of the contents of the paper is sufficient against the party who might remove all doubts by producing the original. Foye v. Leighton, 24 N. H. 41, and cases cited. The witness testified that he knew it was a copy, which made it competent evidence to go to the jury; and the defendants had it in their power to show whether the witness was mistaken or not, and did not choose to do so. They can not complain. Bassett v. Salisbury Co., 28 N. H. 452.

The suspension of the 36th rule of court was a matter within the discretion of the court. Deming v. Foster, 42 N. H. 165, 178. We see no reason for revising the ruling of the court in the present case (if wre would do it in any case), when we consider the circumstances, and the conditions upon which the ruling was made.

We think the evidence in relation to the Lowell dam, thirty miles below the dam and land in controversy, and its effects on the stream and river banks in its neighborhood, was properly excluded, notwithstanding evidence of the same facts was afterward admitted without objection. It would only be raising a collateral issue, and would be undertaking to test the point in dispute by another equally doubtful, where all the facts alleged, if proved,- would furnish no legal presumption as to the principal facts in dispute. It would, in truth, be raising a new’ issue, to be tried and decided, which the plaintiffs could not be expected, and would not be required to be prepared to meet on this trial. Collins v. Dorchester, 6 Cush. 396; Aldrich v. Pelham, 1 Gray 510; Hubbard v. Concord, 35 N. H. 59.

The evidence tended to show that the defendants’ dam raised the water in the river as far back as Hooksett falls, and the defendants were claiming that they had acquired a right by prescription to raise and use the water, as they had raised and used it since the plaintiffs purchased their land. Now, in answer to that claim, the plaintiffs introduced witnesses owning land between the dam and Hooksett falls, on the river, who were allowed to testify that the water had been higher for the five years past than at any time before; and in connection with that fact they were allowed to describe the changes in the banks on their lands, and on the plaintiff's’ land, from washing, during the last five years, and also for the years previous, and stated the comparative extent of these changes, in the different periods of time.

"We do not consider this testimony objectionable, as calling for the opinion of the witnesses. They stated facts within their knowledge, occurring in different periods of time ; and they could well state whether the water had been higher or lower, or the banks had been washed more or less in one period than in the other, and about how much, more or less, as matters of fact, about which a witness may properly testify. In questions relating to heights and distances, and as to the number, quantity and dimensions of things, a witness may not be able to testify without an implied expression of opinion ; but that is no objection to the testimony upon such points and subjects. Hackett v. Railroad, 35 N. H. 390; Willis v. Quimby, 31 N. H. 485; Hall v. Davis, 36 N. H. 569. And if the water had been higher on all their lands, and on the plaintiffs’ land, and the banks had been washed more, on all these lands, for the last five year’s, than before, and the evidence tended to show that this rise of water and washing of the banks was caused by the defendants’ dam and flash-boards, we are at a loss to see why this evidence was not competent to rebut the evidence of a prescriptive right thus to flow; which right requires twenty years’ user as a foundation on which to rest. This testimony was not introduced upon the question of damages, but upon the question of right. The plaintiffs could only recover damages for injuries done after they owned the land.

There is no foundation ‘for the exception to the testimony in relation to the building of a part of the dam in 1856, on the ground that “ this structure was outside the original channel.” That could make no difference ; for if the defendants built and maintained a dam any where; which raised and kept the water on the plaintiff’s land higher than they had the right to do, it could make no difference whether it was in the original channel or out of it. The case finds that it was a part of the defendants’ dam, and was erected where the water did run over in high water, and thus impeded and raised the water at a time when damages are usually done to land by flowage.

The question to Straw was properly excluded. "When its particular form is examined it will be seen that in order to answer it, Straw must decide upon the legal effect of all the written contracts he had taken from such riparian proprietors, in order to decide from how many he had, and from how many he had not obtained such right; a responsibility which the law does not impose upon any witness, and which it will allow to be assumed by none. But even if the question had been so varied as not to be liable to that objection, it is difficult to see how it could be material. If he had obtained such rights, or deeds, or writings, purporting to convey them from all such proprietors except the plaintiffs, that would in no way affect the plaintiffs’ rights, or the defendants’ liability for infringing them. If he had named several persons from whom he had not obtained such rights, and had not mentioned the plaintiffs among them, that fact would not have been competent to show that he had acquired any such right from the plaintiffs, because, from his own testimony, it appears that if he has any such grant it is in writing, and must be produced, as the best evidence of the fact. "We do not see that the question could have been answered in any way which would have made the answer material.

Nor was it necessary that the plaintiffs should notify the defendants before they brought their suit. The doctrine of the cases in this State and elsewhere is, that he who erects a nuisance does not, by conveying the land to another, transfer the liability for the erection to the grantee; and the grantee is not liable until, upon request, he refuses to remove the nuisance, for the reason that he can not know, until such request, but the dam was rightfully erected; and there can be no injury in holding to this doctrine, as the original wrong-doer continues liable, notwithstanding his alienation. Plummer v. Harper, 3 N. H. 88; Woodman v. Tufts, 9 N. H. 91; Curtice v. Thompson, 19 N. H. 471; Carleton v. Redingion, 21 N. H. 291; Snow v. Cowles, 22 N. H. 296 ; Waggoner v. Jermain, 3 Denio 306 ; Johnson v. Lewis, 13 Conn. 303 ; 1 Ch. Pl. 83.

In the case before us the party erecting the dam and causing the nuisance, if there is any, still continues to maintain it. There has been no transfer of the dam, or the land on which it stands, nor any change of possession since the dam was built. But the land, claimed to be damaged by the ffowage had changed hands, and the instructions of the court were, that, upon certain conditions, the plaintiffs would be entitled to recover nominal damages, &c.; and in such a case no notice from the plaintiffs was necessary, although this ffowage was the same before as since the plaintiffs’ deed.

By this ruling it may have been intended to be held that no notice, in the particular case stated, was necessary; that is, where only nominal damages were to be recovered; or it may have been intended to be held that no notice in any case was necessary where the nuisance was continued by the same person who first erected it, although the premises claimed to he injured by the nuisance had been conveyed. We presume the latter was what was intended by the ruling, and that would include the fonner; and we think the ruling, in that view of it, correct.

In Woodman v. Tufts, 9 N. H. 91, after stating the doctrines applicable to notice, when the one who has erected the nuisance conveys it with the land on which it is located, it is said, “ A similar reason for a request to abate a nuisance arises where the property affected by the nuisance has been aliened. If the grantor acquiesced in the act affecting the property, or made no complaint, the natural inference would seem to be that the grantee willingly took the property as he found it, and it would be considered as an assent on his part, until request should be made that the nuisance be abated. In Penruddock’s Case, 5 Coke 100, it is said, “ If the house affected by the nuisance Ire aliened, the alienee, after request made to remove or abate the nuisance, may maintain an action for the nuisance.”

But such is not the law. The reasons there given for the position are unsatisfactory, and the authority which is cited in support of it does not sustain it.

The party who has erected a dam and flowed my land without right, is liable to me for the damages •, and if I sell the land, and he continues to flow it by maintaining the same dam, he does not need any notice of the change of title or of possession. He is presumed to know, and to intend the natural consequences of his acts, and is liable for the injury he does, which is no more or less to my grantee than it would have been to me, unless he wishes to use the land for some different purpose. The party who originated the injury, and continues it, can not ask for any notice to make him aware of his liability. He knows that as well as he did while I owned the land, or as he would if I had not sold it. Suppose, as is assumed, that I had never objected, but had allowed the nuisance in silence for one year, or three years, I should then have the right to object, and to bring my suit for damages, and that without any notice; and why should my grantee be required to give notice in such a case more than I? But suppose I had objected from the first, and had brought a suit and recovered j udgment for damages, and then sold the land. There the reason for the rule laid down in Woodman v. Tufts -would be entirely removed, but the rule, as there stated, would remain, and must be applied alike, in all cases, whether with reason or against reason.

But again : Admitting the doctrine to be correct that a vendee of land, injured by a nuisance, must give notice to the person erecting and continuing the nuisance, before he can maintain his action, then, during the time when he is thus without remedy, the statute of limitations would not run against him, and such time must be deducted from the whole time, in ascertaining the twenty years of prescription ; and if he should never give the notice he would never be entitled to his remedy, and the defendant could never acquire the right to flow the land by prescription. The defendants in this ease would hardly assent to that doctrine probably. But it may be said that the party injured should be required to give his notice in reasonable time, and that only such reasonable time should be deducted from the whole time in fixing the time of prescription. But various difficulties might present themselves to any such holding, which we need not now stop to consider. The defendants would hardly be willing to adopt that doctrine, at least if making such a deduction was to defeat a prescriptive right which they would otherwise be able to establish; and with reason, because we think they might properly claim that if they had flowed the land now owned by the plaintiffs, just as they now do, for twenty years and more, before this suit was commenced openly, visibly, without interruption, and adversely to every one claiming the land during that time, the right had been gained. Nor would it make any difference in regard to the user being adverse, whether the man who originally owned the land that was injured, had continued to own during all the twenty years, or whether the land had changed hands every year during that time.

No such objections arise to the notice to the vendee of the land on which the nuisance is located, because it is there held that the owner of the land injured has his remedy all the time against some one. If he can not sue the vendee of the nuisance without notice, he can the vendor, even after he has aliened the nuisance; and, after notice to the vendee, he may sue either, at his election.

I find the precise expression which is used in Woodman v. Tufts as being from Penruddock’s Case, in 12 Petersdorff’s Abridgement, 798, 799, note, with a reference to the same authority, but the case itself authorizes no such conclusion. Penruddock’s Case, 5 Coke 101, was a quod permittat prosternere, between Clark, plaintiff, and Penruddock and wife, defendants. The case was this : John Cock built a house on his land, so near the curtilage of Thomas Chichley that his house did- overhang the curtilage of said Chichley three feet. Cock then conveyed his house to Penruddock and his wife, and Chichley, to whom the nuisance was done, conveyed his house to Clark, the plaintiff. It was objected by the defendant, that if the tenant to whom the wrong is done, enfeoffs another, his feoffee shall never avoid this wrong, for he shall take the laud in the same plight as it was given him'. Wherefore it was contended that the feoffee should not have the said quod permittat, to avoid the wrong and nuisance made in the time of his feoffor.

But it was resolved that the dropping of the water, in the time of the feoffee, is a new wrong, so that the permission of the wrong by the feoffor, or his feoffee, to continue, to the prejudice of another, shall be punished by the feoffee of the house to which the injury was done ; and if it be not reformed, after request made, the quod permittat lies against the feoffee, &e. But without request made it doth not lie against the feoffee, but against him who did the ■wrong it lies without any request made, for the law doth not require any request to be made to him who doth the wrong himself.

So that Penruddock’s Case, instead of being an authority that the feoffee of the house injured could n’ot maintain the writ of quod permittat at all, without notice, is a direct authority that such feoffee may maintain the action against the party doing the original wrong, and continuing it, without any notice ; and that the notice in that case was required, not because the plaintiff was the feoffee of the premises injured, but because the defendant was the feoffee of the premises containing the nuisance. This case is stated briefly by Richardson, C. J., in Plummer v. Harper, 3 N. H. 91; and by Savage, C. J., much more fully, in Blunt v. Aiken, 15 Wend. 523; and again by Jewett, J., in Waggoner v. Jermain, 3 Denio 309; and in all the doctrine of that case is approved. I find the same doctrine held in Westbourne v. Mordant, Cro. Eliz. 191; in Beswick v. Cunden Hill, Cro. Eliz. 402; Some v. Barwish, Cro. Jac. 231, and in Brent v. Haddon, Cro. Jac. 555, where a request was made to the lessee of the party erecting the nuisance.

In Curtice v. Thompson, 19 N. H. 471, the true principle is stated, where it is said, in speaking of the defendants, “ As the authors of the nuisance, then, they have no right to any notice. They are liable upon the evidence which charges them with having caused the nuisance; notice being required only to charge a purchaser by reason of having adopted it. So in Johnson v. Lewis, 13 Conn. 303, the plaintiff' was the feoffee of land injured, and the defendant was feoffee of the land containing the nuisance, and held that notice was necessary before suit, not because of the plaintiff’s position, but because the defendant was purchaser of the land containing the nuisance. And it is said that otherwise the purchaser of such property might be subjected to great injustice if he were made responsible for consequences of which he might be ignorant, and for damages which he never intended to occasion. Branch v. Doane, 17 Conn. 402, 418, is also a case in point. So in Hatch v. Dwight, 17 Mass. 289, it is held that the right of a mortgagee to commence an action in such a case exists as soon as he takes possession of the mortgaged premises.

The party obstructing a water-course, so that it overflows the plaintiff’s land, is not exonerated by conveying the land to another, nor is he entitled to notice to-abate before action brought. 1 Hill, on Torts 710 ; Angelí on Water-courses, sec. 403; Wasson v. Sanborn, Rockingham Co., December term, 1861.

The other portion of these instructions, that the defendants were liable in nominal damages, if they had, by their dam and flash-boards, raised the water on the plaintiffs’ land, actually and perceptibly, higher than they had the right to do, is in accordance wfith numerous decisions in this State and elsewhere. Snow v. Cowles, 22 N. H. 296, 302; Woodman v. Tufts, 9 N. H. 91; Bassett v. Salisbury Manf. Co., 28 N. H. 438; Tillotson v. Smith, 32 N. H. 90, 96, and cases cited; Branche v. Doane, 18 Conn. 233. But it becomes unnecessary here to express any opinion upon the question thus raised, or upon the authorities thus cited, as the jury gave damages in the sum of two hundred dollars, which is more than nominal, and shows that the jury found the plaintiffs’ land had been actually, and substantially, and wrongfully damaged by the defendants. No state of facts arose to which the instructions could apply, and they therefore became immaterial.

. The same is true in relation to the instructions, which the court declined to give, in regard to the reasonable use of the stream by the defendants; for those instructions were sought and predicated upon the assumption that no actual damage was done. Upon the finding of the jury those instructions also became immaterial.

The act of the legislature, passed July 3, 1861, by its own limitations has no application to this suit. The other acts referred to authorize the purchase of lands about Amoskeag falls, and the erection of a dam there across the Merrimack river, with other works, buildings and machinery, for the purposes of carrying on the manufacturing business in various departments. But none of these acts in terms gave the company any right to take the lands of others for their use, nor do they provide for any compensation for lands so taken ; and without the latter provision any authority to take lands, either express or implied, in their charter, or any act of the legislature, would be unconstitutional and void. But these acts simply give the company the right to build a dam and mills of vaiious kinds for the company’s own use. But an act authorizing one to build a dam on his own land upon a river which is a highway, merely protects him from an indictment for a nuisance in obstructing the river; but if in doing this he overflows his neighbor’s land, he is liable to an action therefor. Thatcher v. Dartmouth Bridge, 18 Pick. 501; Crittenden v. Wilson, 5 Cow. 165 ; Gardner v. Newburgh, 2 Johns. Ch. 162; Angell on Water-courses, see. 476. The ruling on this point was correct. There must, therefore, be

Judgment on the verdict.