Lynn v. Thomson , 17 S.C. 129 ( 1882 )

The opinion of the court was delivered by

Mr. Chief Justice Simpson.

This action was brought to recover damages alleged to have been done plaintiff’s land by backwater from defendants’ mill-dam. The jury found for the defendants on the last trial, from which this appeal comes. On the former trial they failed to agree. The plaintiff grounds his appeal upon numerous exceptions, nineteen in number, assigning errors of omission and commission, refusals to charge on request and in charges made. The appellant in the argument reduces these nineteen exceptions to nine points, one' of which (the 7th) was abandoned at the hearing, as we understood. The respondent discusses the case under two heads:

1. The first of the nine heads of the appellant raises the question of the competency of an interrogatory propounded to a witness on the stand for plaintiff, and which was excluded by the judge. The premises involved in the case were situate in Union county, on Thickety and Gilky creeks. The witness on the stand was a resident of an adjoining county, Laurens. “ He was asked by plaintiff what effect he had observed upon streams of water in Laurens county following the removal of dams?” The defendants objected, and the question was ruled by the judge incompetent. We think a general question of that kind was irrelevant. The matter under investigation was whether damage had been done to plaintiff’s land, located on Thickety and Gilky creeks, miles away from the residence of the witness. Whether the lands on the streams in Laurens were similarly located with reference to those streams, as the plaintiff’s land was in reference to Thickety and Gilky creeks, had not appeared; and, even if such had been the case, the question seems to us to be irrelevant. It is difficult to say distinctly what constitutes relevancy, so that a definite rule may be established by which the matter in every case may be at once determined. It must therefore be left in a great measure to the discretion of the presiding judge, subject to the right and privilege of the party to show the relevancy of the question when objected to. We have failed to be satisfied by appellant’s argument, or by any authorities referred to, that the presiding judge was in error here.

2. David Smith, a witness for plaintiff, testified that Alex. Goforth was the builder of a new dam, erected in 1869, in place of an old one, and that Goforth was now dead. He was asked by plaintiff’s counsel if Goforth, at or about the time this dam was completed, made any statement to the witness about the height of his dam. The question was objected to, and ruled incompetent. This was an attempt to bring into the case the declarations of one who was not before the court, either .as a party or in any other way — declarations made without the sanction of an oath, and without an opportunity to defendant to cross-examine. If this had been admitted, its truth would not have rested on the credibility and character of the witness ■on the stand, but upon one who could not be put to the usual tests required. Unless it can be made an exception, to have -admitted such.declarations would have been in direct conflict with the general rule of evidence in reference to hearsay.

In questions of boundary hearsay is competent testimony, and the declarations not only of surveyors and chain carriers, but of other persons, will be admitted, under one of the exceptions to the general rule, excluding hearsay. The declarations •of surveyors in the eases of Coate v. Spear, 3 McC. 229, and Blythe v. Sutherland, Ib. 259, relied on by the appellant, were admitted and properly admitted under this exception. But it would be straining the exception as to boundary lateral very far indeed to admit hearsay testimony as to the height •of a mill-dam at a particular time on the ground of boundary vertical. Hearsay testimony has none of the safeguards of truth. We think the door for its admission has been opened wide enough by the exceptions already established, and we have no warrant to extend the doctrine further.

3. Davidson, a witness for the plaintiff, owning lands opposite on Gilky and Tliickety creeks, below the plaintiff’s, testi■fied that when the Massey dam was built in 1852 he complained to Waddy Thomson, the then owner, now deceased •(and through whom defendants derived title), that this dam was higher than the previous one, and that Waddy Thomson said, “ Let it stand, and that he would bring it down to its former height when he built again.” The next dam was the Goforth dam, built in 1869. Plaintiff requested his Honor to-charge, that if they believed Davidson’s testimony, and that the Massey dam was raised, that a prescriptive right for the increased height did not begin to run until th§ Goforth dam-was built. The judge refused.

It is true that an easement cannot be acquired by permissive use. On the contrary, it is founded upon adverse use. It is an enjoyment claimed and exercised as a right; and if, in> this case, the witness Davidson had been the plaintiff for an-injury to his land, upon such testimony, if believed by the-jury, he might have urged with force the proposition contended for by appellant. The prescription as to his land could not have commenced so long as Thomson was exercising the privilege to overflow it by permission. But we do not see-.how this fact, if true, could protect the present plaintiff. He does not claim through Davidson, and there is no evidence-that he gave Thomson permission to raise the dam either directly or indirectly.

4. A short time before action brought the plaintiff proposed' to buy the dam, mills, and twenty acres of land of defendants, at $5000, saying the object in buying was to pull the dam down. His Honor charged that this offer “ was strong as an acknowledgment of the right of defendants to keep the dam as it then stood.” "We do not see such error at law in this as to require redress from this court. This was not a charge upon the facts, and therefore an invasion of the province of the jury. The fact that the proposition to buy had been made was a fact proved by the plaintiff. It was admitted to be a fact in the case, and the judge in commenting on this fact stated to the jury his interpretation of its force and effect.. The case of Chandler v. Geraty, 10 S. C. 308, referred to by appellant’s counsel, was a case where it was held that a proposition of compromise made by a party to an action was properly excluded as testimony against him, it being the policy of the law to encourage compromises. But here this testimony was brought out by the plaintiff himself. He was responsible-for its being before the jury. He made no motion, as we can see, to strike it out. And we cannot say that the construction put upon it by tbe judge was so far wrong, as upon that ground, to require of us to prolong this litigation by ordering a new trial.

5. The appellant excepts to certain expressions used by the judge in his charge, to wit, to the following: “ Would you, gentlemen, raise your dam higher when persons were watching you ? "Would you do so and risk a lawsuit?” These are objected to on the ground of conflict with the constitution, Art. IT., § 26, which forbids judges from charging on the facts. It is difficult to lay down an infallible and inflexible rule by the application of which it can be determined, in every case, whether this section of the constitution has been violated. A clear violation is where the judge decides a question of fact about which there is dispute, and so instructs the jury; but where there is no dispute as to the immediate fact testified to, and the question is as to the effect of such fact, it being susceptible of one or more inferences, we do not see that it would be an invasion of the province of the jury for the judge to point out to them the different conclusions which may be drawn, and the circumstances which might incline them to believe the one or the other, reserving his own opinion. We do not know, nor can we say, that the presiding judge in this case intended to do more, than this by the questions which he propounded to the jury.

What the judge said as to there being proof that the head of the dam had been for twenty years at the same place, we do-not think was in violation of his duty. He did not intend to take that fact from the jury and decide it himself, but we-think he used the word proof in the sense of evidence.

6. It is objected that the judge instructed the jury that-the use of a dam for twenty years gave a prescriptive right. This charge, without explanation, separated from its connection,, and applied whether the use was adverse, permissive, or upon the party’s own land, without doing injury to another until very recently before action, would be error; but, if adverse from the beginning, and giving a cause of action to another during all this time, it would be strictly in accordance with the settled law upon that subject. The judge, we think, intended, this, because he used the following language: “ Though this, condition may not have been apparent at first, still the question is, When did this sobbing commence ? Whenever that began which the plaintiff calls injury, the right of action accrued. That from such time it is adverse possession.” And then follow: “ That if Hope or Thomson, or anybody else, was in possession of the use of the dam in this case for twenty years, they thereby acquired a prescriptive right to use a dam at same place, at same height, and to same extent, as the one so used for twenty years.” So it is apparent, when the charge is taken as a whole, as it should be, and not in detached portions, that it is not subject to the exceptions presented.

Y. We understand the seventh ground to be abandoned.

8 and 9. These appear to raise substantially the same question, to wit, that his Honor erred in holding that where an easement has once been gained by prescription, that new and •different injuries to the servient property, or the rights of the servient party resulting from the use of the easement, cannot affect its enjoyment; that the easement will stand, notwithstanding the new and recent injurious consequences. We ■think this principle is a correct deduction from the character of easements, and the theory upon which they are maintained. An easement is founded upon a grant which is supposed to have been lost. The grant is understood to have been executed by the party over whose property and rights the easement has been acquired. The twenty years’ adverse use is the evidence of the previous execution of the grant. The right to enjoy the easement is therefore conveyed to the grantee, and the grantor is ever afterwards estopped from denying its use by such grantee. The grantor is supposed to have parted with the right for a sufficient consideration, and must take the consequences, present or prospective. There was no error, therefore, in the ruling of the judge as to this point.

In fact, when the charge of the judge is read as a whole, with the direct propositions charged, and the qualifications to the various and numerous requests made of him, compared together, we think, standing as a whole, it was free from any such legal error as would warrant the interposition of this court.

It is the judgment of this court that the judgment of the Circuit Court be affirmed.