Imboden v. Etowah & Battle Branch, Mining Co.

Jackson, Chief Justice.

A bill was filed by defendant in error against the plaintiffs in error to enjoin the latter from interference with the water of a long ditch or canal claimed by the former, to compel the restoration of the water to the original ditch or canal, from which it had been diverted by the plaintiff in error by tapping that ditch above the lots owned by defendant in error, and to recover damages for such diversion of the water from the true owner thereof.

On the trial of the case before the jury, a verdict was rendered granting that injunction, directing the restoration of the water, and rendering damages to the amount of six thousand five hundred dollars for the complainant against the defendant; and a decree in accordance with that, verdict was entered by the chancellor thereom

. Pending the trial, a motion was made at the close of the testimony to dismiss the bill, and on the denial of that motion, error is assigned here. After verdict, a motion was made to set aside the decree, on various grounds therein taken, and to annul the same, and a motion for a new trial on a vast array of grounds therein taken.

These motions were all overruled by the court, and error is assigned here also on the judgment overruling them.

In the view which we have taken of the case, it will be unnecessary to consider all the grounds taken in these various motions. The ditch is very long and not free from mud, though traversing a mountain country; it was the duty of the plaintiff in error to remove enough of that mud to enable this court to see what of gold there was in the ditch, or at its extremity, for the Dahlonega corporation ^ and before the bill of the Battle Branch company could have been legally dismissed at the close of its testimony, the Dahlonega company should have opened 'the entire ditch to show that no gold at all was in it for that other contesting corporation. In other words, to show that its-claim to the ditch had no equitable merit in it — no right to the water it claimed or the use of that water — and therefore no admittance at all, on the facts it made, to the-temple of justice at its equitable door.

1. As well on this motion to dismiss as on the motion for a new trial, the plaintiff in error rested its case mainly on the idea that the Battle Branch company had no legal existence — no privilege to sue — and therefore the door should have been shut in its face at the outset; and after it had got in, what was done for it by verdict and decree should be undone, and a new trial awarded.

Unfortunately for the Dahlonega company, however, it dealt with the Battle Branch company as a corporation. repeatedly, in respect to the waters of this very ditch, it actually obtained its permission to use those waters; it did use those waters under that permission for years; it dealt with its attorneys, its presidents, its superintendents and managers, as attorneys, presidents, superintendents and managers of a corporation, known and recognized by it as the Etowah and Battle Branch Hydraulic Hose Mining Company. It called it by the name, the long name, the very remarkable and distinguished name, by which it was clearly distinguishable from all the world of creatures, corporeal and incorporeal, and which it had received by baptism at the christening fount of the general assembly of the state of Georgia. Surely such a recognition of the infant by name; such a dandling and handling it; such billing and cooing with it; such reception of gifts and favors from it; such drinking the water of the child’s ditch by permission of the little creature, must estop, in all courts, both of law and equity, the recipient of such favors from denying the existence — the breath in the body of the being with whom it thus dealt so long and from whom it received (much of it without money and without price, too,) so many favors.

This court, as indeed all civilized courts, has ruled that such recognition of a being — even of an artificial being— will stop the mouth of any other being, natural or artificial, from denying, in a case growing out of such recognition, that the being thus recognized ever had being. Planters’ and Miners’ Bank vs. Padgett, 69 Ga., 159; Georgia Ice Co. vs. Porter & Meakin, 69 Ga., 159. (This term; not yet reported.)

This record abundantly and conclusively shows repeated recognitions by the Dahlonega Gold Mining Company of the Etowah and Battle Branch Hydraulic Hose Mining Company touching this water and these mines, so that the fact of the recognition and dealing of the one company with the other as a defaeto corporation, is established ; and such being the fact, the law is that it must still recognize the old acquaintance as a live person.

So that the plea of “ nul tiel corporation ” is no legal plea, under the facts proved in this case; and the complainant can sue, and enter the court, and may abide there as a person entitled to sue this defendant and respond' to it, or other persons through it, with whom it may be litigant touching this water.

2. It was with the present corporators, too, that it dealt, with the personnel now composing it, with the presidents, superintendents and managers, since-the meeting in Washington City and afterwards in Dahlonega, Georgia; and hence, it cannot deny these organs — this personnel^ by which alone the artificial equity can breathe, talk, grant licenses, make bargains, lease or give away its waterpower or other property, or otherwise act as a live person. Hence, everything in this record which attacks the defendant in error on any matters affecting the charter or the organization under it, or the place where it was organized, are swept away by the same principle which estops a denial of its existence as a living being.

These principles above indicated rule the points made in the 6th, 20th, 28th, 29th, 30th, 32d, 33d, 34th, 35th and 36th grounds of the motion for a new trial, as well as the error assigned on the denial of the motion to dismiss the bill on the ground that there was no proof of complainant’s corporate existence.

3. But conceding, as plaintiff in error must, that the complainant is a corporation, is there evidence to show that it is entitled to relief in equity in respect to this ditch and the water in it, and the cutting off that water by the plaintiff in error? That depends on its title to the water in the ditch. How is the Etowah and Battle Branch Hydraulic Hose Mining Company entitled to the ditch and the flow of water therein ? And is there evidence of title to that water in this record sufficient to uphold the verdict ?

We are of the opinion, from a careful examination of the evidence disclosed by the record, that the company, or men who composed it originally, constructed the ditch and •derived their title to it from the legislative grant, of power to construct it and the actual construction thereof by expenditure of money therefor.

Hezekiah Kelly supervised the' 'work, employed the hands, and paid for it. -By what authority could he construct such a work through the lands of others for fifteen •or twenty miles as an individual ? He could not, except by purchase of the right of way through the-lands of each ■owner thereof, or the purchase of "the lots themselves. The record fails to show that he did either. On the other hand, it shows that he, with two others, was made a body -corporate to do this very thing — to construct this ditch 5 that the company thus chartered .was called by the identical name it now bears; that it was chartered about the time this work was commenced and in progress; that in the same act another company, of which the. same Kelly was also a member, was chartered to construct another -ditch on the other side of the Etowah river; that the charters were granted upon the idea and for the.purpose cf getting water to work mines, and to that end authorized the settlement of damage to the owners of lots through which the canals might be cut, as in cases of railway charters.

It was under this charter, beyond all question, that Kelly proceeded to cut this ditch. The evidence further shows that, touching business connected with these mines and this ditch, Kelly was paid by the other corporators of this company. Receipts and drafts pointing closely in that •direction, if not perfectly straight to that conclusion, are in testimony, as the record shows. Eastman and Denny were not corporators in the other company.

There is, therefore, evidence to a moral certainty that the •original corporators paid for the ditch. One of them dug it, superintended and paid for the labor, and the other two paid him therefor. The ditch so cut was carried to a reservoir on one of the lots owned by the same parties,, and this reservoir was also dug by Kelly, and there this-ditch at that time terminated.

Kelly first owned this lot, but conveyed it to the other two corporators, Denny and Eastman, on the 23d of December, 1859, with all rights, members and appurtenances, and on the 6th of March, 1860, conveyed to them the three other lots, 384-7-8, or all the mineral interest he had therein, with all necessary easements for mining purposes.. About the same time the following receipt was given by him:

“New York, December 6th, 1859.

“Received of Arthur M. Eastman and Reuben S. Denny three thousand dollars each [six thousand dollars], being all the payments due-in fulfillment of a contract between said Eastman and myself dated October 4th, 1859, relative to lands, mines, and improvements upon Hightower river, in Lumpkin county, Georgia. H. Kelly,”

$3,000.00

3,000.00

$6,000.00

Another receipt was also given in the July following as’, follows:

“New York, July 20th, 1860.

“Received of A. M. Eastman nine hundred and fifty-nine dollars for one-half of the working expenses of the Etowah and Battle Branch Mining Company up to the first of August, 1860.

H. Kelly, Agent.”

$959.00.

And in addition to these receipts, two drafts were drawn by Kelly on Eastman for $1,000 and $1,275, on February 20th and July 19th, 1860, during the progress of the work,, and were duly paid by him.

In addition-to all this, it further appears that suit was-instituted in 1861 against the company for the damage assessed under the charter to lots of land between the owners and Kelly, as agent of the company, brought by John A. Wimpy, as attorney for the plaintiff.

The defendant corporation, the Dahlonega Gold Mining Company, sets up in its answer title to the ditch from Kelly to John A. Wimpy, and Wimpy to them. Hence, Wimpy, their immediate grantor, had full knowledge of the agency of Kelly for the company, and so the Dahlonega company must be affected therewith.

These facts show that the company now suing — after-wards more fully, by Denny and Eastman at Washington City and Dahlonega, organized and put in operation by electing officers — constructed the ditch, and certainly hold title to the water as against the plaintiff in error at least, who used, under the organization thus put in operation, the water of the ditch, recognizing the title of complainant ■thereto.

So that we think and hold that the evidence--in the record is strong enough to show title to the water of the ditch in the defendant in error.

If so, equity will enjoin the other company from depriving the complaining company of the use of its own, whensoever and howsoever it may desire to use it, and will restore to the owners the use of its own ditch. ■

4. Nor is it at all vital to this right of the complainant to use its own water on mines located on certain lots, that it ■does not make out an irrefragable title to the entire fee of .all the lots, or of either of them. If it owns any aliquot part of either lot, or any interest at all in a mine on either» or if it owns no mine at all, having dug the canal and put the water in a reservoir on a commanding height, whence that water may be distributed to surrounding lots whereon there are mines rich enough to be operated with water, it may use its own valuable estate in the water, or sell it for .a valuable sum of money to some other person, neither of which can it do if the property in the water be destroyed by a neighbor cutting and tapping the ditch which holds the water and carries it to the reservoir there, thus drying it up.

These views, under the last two heads, will control many ■other points in the motion for a new trial, embracing the 1st, 2d, 3d, 4th and 5th general grounds, that the verdict is contrary to evidence, it not being contrary thereto in-respect to the injunction, against the use of the water and commanding its restoration to the original ditch.

The 6th ground has been disposed of. The 7th relates-to damages and will be hereafter considered.

5. The eighth charges that the verdict is vague and uncertain. The verdict is, “ We, the jury, find for the plaintiff the property in dispute, and the damage on one hundred inches of water at 12 cents per inch per day, for two-years or 560 days, $6,700, and that the defendant put tidewater back in the ditch, for perpetual injunction, with cost-of suit.”

The verdict is quite certain on the main issues, as it appears to us. There may be some confusion and uncertainty about the damages in regard to the two years and" 560 days, which will be considered hereafter.

6. The ninth ground is in" respect to the admissibility of record copies of deeds lost. The evidence of the search for the originals was enough, we think, to admit the recorded copies, which are the next best evidence. The tenth, eleventh and twelfth grounds relate to the admission of other deeds. They appear to us admissible at least to support adverse possession, and as written color of title to'that end.

7. The 15th ground was properly overruled. The conversation objected to was betwreen agents of the two companies, and showed that the Dahlonega company used the-water of the Battle Branch company, by permission of the-. Battle Branch company, through its agent at the time.

8. The 16th and 17th grounds are objections to the admission of the receipts and drafts given and drawn by Kelly on the other corporators, before alluded to, and which threw great light on the contemporaneous transactions between these parties touching their joint dealings in regard to these works and preparations for mining on the Etowah' river. They were admissible for that purpose.

9. The 18th was properly overruled. Hearsay, as top death, is admissible testimony.

10. The court papers of the suit of E. Castleberry against the Battle Branch company, for damages assessed by arbitrators under the charter, selected according' to it, through Kelly as the agent of the company and the plaintiff, the suit being brought by Wimpy as attorney, were admissible, because, as already stated, the Dahlonega company set up title to the water under Kelly and Wimpy. So the 19th ground was properly overruled. The 20th has ' been disposed of.

11. The 21st, 22d, 23d and 24th grounds were properly overruled for the reasons that they were admissions of agents and officers of the Dahlonega company, and the admissions of such agents acting within the scope of their powers and about the business of their agency. Unless such admissions are binding on a corporation, it cannot -be bound by admissions at all. The only way in which" a corporation can talk and admit is by agents. It is dumb as well as deaf by itself, having no organs of speech or hearing except by natural persons as its agents.

12. The 25th relates to- the interrogatories of Graham explanatory of the part of the ditch conveyed by himself and partners to the Dahlonega company, or those under whom they claimed, to the point that the conveyance related only to the ditch cut from the reservoir down to the Hockenhull or Battle Branch mine, and not to the main Kelly ditch at all. It does not alter, vary or add to the -written conveyance, but explains what the conveying party claimed, and the other side bought, as an easement. It was admissible, too, as explanatory of an ambiguity, which under the Code of this state may be explained by parol, whether the ambiguity be latent or patent.

This ground also objects to other answers which gave admissions of agents of the company, and has been already ruled in principle; and some of them are also said to be irrelevant. They appear generally relevant; if irrelevant, it is not shown how plaintiff in error was hurt.

The 25th ground, therefore, Was properly overruled.

The 26th relates to what the purchaser swore on this trial to the same effect, showing that he, Moore, understood the scope of the conveyance in the same way. The other objections to these interrogatories of Moore relate to admissions of agents of the Dahlonega company, and are controlled as to this point and irrelevancy as the 25th ground is ruled.

The 27th ground relates to Clark’s interrogatories, and the objection rests on the inadmissibility of sayings and admissions of the president of the Dahlonega company. Of course they were admissible. It was for the jury to weigh what the witness said, whether positively recollecting the admission of Lombard, or thinking, to the best of his recollection, that he did say so and so. Besides, there is abundant other evidence of these admissions, and plaintiff in error was not hurt.

The 28th, 29th and 30th grounds have been disposed of.

13. The 31st ground objects to the entire charge without specifications of particular portions as exceptionable. The rule in such cases is that if any part be good law, the objection will not be considered. In so far as this objection pronounces it all as vague, uncertain, not covering the issues and points, but going out of them — not presenting points of the Dahlonega company, but giving undue prominence to the Battle Branch company’s points, inaccurate in statement and calculated to mislead the jury and erroneous, we have to say that we cannot so see it, and that the plaintiff in error has failed to particularize wherein it is thus so erroneous.

The 32nd, 33rd, 34th, 35th and 36th grounds have been disposed of.

14. There is nothing in the 37th ground. What the answer admits as true, if charged in the bill, need not be proved, though discovery be waived. What the answer denies must be proved in such cases, if relied on by complainants. What the answer asserts as true is not evidence for defendant, if discovery be waived, but must be proved aliunde. These are rules so well established that- it is rather surprising that points are made upon them as objectionable in a charge to the jury. If plaintiff in error wished any addition, thereto as to admissions in complainant’s bill, and the effect of those admissions, the judge’s ■attention should have been called thereto. This was not done; nor has any admission been pointed out to us in complainant’s pleadings which could have helped the defendant, if the court had applied the principle without being requested to do so. Plaintiff in error was not, therefore, hurt by the omission.

15. The 38th, 39th and 40th grounds of the motion complain of charges to the effect that if the water was used by the Dahlonega company by lease or rent from the Battle Branch company, the former was estopped from denying the existence of the latter as a corporation, and from denying its title while so using the water under it; that if complainants, or those from whom they derived title, constructed the ditch in part, and defendants, or those under whom they claim, extended the ditch, under a contract or agreement to complete it and return it all to complainant, after using the water for a time, then complainant was entitled to all the water at the expiration of that time; and that if the ditch was constructed jointly by Kelly, Eastman and Denny, with their joint funds, or by Kelly alone, and that it was constructed to be used in operating for gold on certain lots, and Kelly conveyed the mineral interest of these lots, with appurtenances and mining privileges to Eastman and Denny, and made no reservation of the right to cut off the water then flowing in the ditch or which could flow in it, then neither Kelly nor those claiming under him would have any right to divert the water from complainant’s property, but they would be entitled to its restoration if so directed.

It strikes us that there is evidence sufficient in the record to authorize these charges in substance; and the principles and views already announced seem to us substantially to cover the legality of them as given. The doctrine of estoppel clearly covers the first, the 38th ground; the same principle would cover the 39th ground, especially as there is evidence tending to show a contract to the effect that the Dahlonega company, or those from whom they got it, were to cease using the water when notice was given to it to cease to use it, and then were bound by the contract to restore it, though while using the ditch permissively they did extend and enlarge its water-power. Nor is there more merit apparent to us in the last paragraph above substantially set out, which is the 40th ground of the motion. If Kelly did convey these lots or the mineral interests therein, with mining privileges, to two persons who dug this ditch in a company or jointly with him, or if he dug it alone, with the reservoir containing water fit for those mining purposes, ought not equity to estop him from cutting off the supply of water from that ditch and reservoir? But it-has been held by us that in our judgment, on the facts, the three dug it together under the charter, and the title is in the company; therefore this charge, if erroneous, does not affect the real merit of the case.

In respect to the charter naming Easterling, and not Eastman, as a co-corporator with Kelly, it is enough to say that Kelly recognized Eastman as the man meant in the charter, and so treated him, and got his money for joint enterprises touching the charter, and that the Dahlonega- company hold under Kelly.

16. The 41st ground relates in part to estoppel in denial of title after use of the water and during tenancy under the Battle Branch company, and in so far as that ground excepts to ,the application of estoppel to denial of title under that state of facts, it is apparent from what we have already said that we see no error in it. The charge excepted to, however, goes further, and lays down a rule to measure the damages of the complainant, conceding that it has made good its title; and that rule, as well as the-question, -whether the evidence and law of .the case touching damages sustain the verdict, will now be considered.

The measure of damages prescribed by the court in the charge excepted to is as follows: “ If you should believe that the ditch and the water flowing therein is the property of complainants, and that defendants have diverted the water and used it themselves, to the damage of complainants and without their consent, then the complainants would be entitled to recover for damages such amount as the use of the water is shown to have been worth for the time it has been used by defendants after the withdrawal of complainant’s consent.” Is this rule the law of this case ?

If one has the use of another’s property for nothing until called for by the owner, and when called for refuses, to give it up, it would seem a sound principle that to measure the damage of the owner, what the borrower made by the use would be a fair criterion; but if the property itself has been largely enhanced in value by the borrower with the assent of the lender, not only in repairing, but in. making extensive and costly additions to the corpus, ought not that to enter into the true measure of damages to the owner ? He not only gets back his own in better repair than when he loaned it, but of double capacity. Nay, the very loan was of advantage to him in the case at bar, as the Battle Branch company thought it better to have water in the ditch than have it dry, and the work of the Dahlonega company opened it to a large extent where filled up, so as to flow the water. Besides, the evidence shows that the complainant had received favors itself from defendant, and the loan of the water was not exactly a gratuity, but amounted to a quid pro quo. In addition to all this, the capacity of the ditch was doubled, by opening for the first time other streams of water into the Kelly ditch.

Let it be borne in mind that the inquiry is, what damage did the complainant receive. How much was it injured? Is it not enough that the defendant doubled the capacity of the ditch, and thereby doubled its value either for use or rental; and shall it pay more ?

Besides, where could complainant have used the water from the time it demanded restoration of it up to the trial ? It was- not ready to use it on mines of its own. When would it get ready ? There is no proof that it had made, or tried to make, preparations to mine on its own lots. Where could it have rented the water ? To what other ■company? There is no evidence in this record of any ■customer it had or could have got.

Moreover, the defendant rented the water on the other -side of the Etowah river, and in order to do it carried it across the river by pipes, at the expense of thousands of dollars. Is it to pay for all the water carried there at full price, with no deduction for the expenditure in conveying it ? The evidence does not show how much, if any, it used on the side of the river where the reservoir of complainant was, nor how much it rented on the other side after, and by reason of, that heavy expenditure; yet the charge was ■construed to authorize, and the verdict found defendant liable for all the water, without allowing it any equitable set-off at all.

We consider, therefore, the charge, as construed and applied by the jury, erroneous and the verdict wrong. On the point of damages, too, it is confused. It is for two years’ use, and yet for 560 days. Deducting Sabbath days, and yet the remainder of two years is not 560 days. Even at 12 cents per day for 560 days, the verdict is inaccurate. It should be $6,720.00, and not $6,700.00.

True, the defendant cannot complain of its being less than it ought to have been by twenty dollars, as it makes that much by the error; but the difference in time of the finding and the inaccuracy of the calculation of amount ■on either the two years or the 560 days, show a want of careful consideration of the case. And this, added to the stronger reasons of the failure of the judge to guard the jury in respect to those elements of this case which would make the naked measure of damages he laid down unfair, and of the fact that the verdict as found is unsupported by evidence of damage to the extent found, on any equitable* rule, requires that it be set aside and a new trial had, unless the complainant write off the damages. The only evidence touching damages in the record is that there was one hundred inches or one hundred and twenty-five inches of water in the ditch, and that the customary rate of rental along the line and from the reservoir was 12 cents per inch per day. There is not a particle of evidence that complainant could have used it or rented it to a person upon, earth, natural or artificial, at that or any price, and that therefore it was worth that money to it.

It is therefore ordered that a new trial be granted, unless the complainant below, the defendant in error here, shall write off the damages; in that event let the verdict as to the right of property, the restoration of the water, and the perpetual injunction stand, and the decree be modified accordingly.

In either event, the defendants in error must pay the costs of bringing the case to this court, as plaintiff in error was constrained to sue out this writ of error in order to* have the damages set aside.

Judgment accordingly.