Citation Numbers: 30 Tenn. 64
Judges: Crozier
Filed Date: 9/15/1850
Status: Precedential
Modified Date: 7/30/2022
delivered the opinion of the court.
This is an action on the case brought by the plaintiff in error against the defendant in error in the Circuit Court of Grainger county. The declaration contains two counts. The first count charges that the defendant erected a mill dam, and the second a dam across a water course adjoining, the farm of the plaintiff, which caused his land to be overflowed. A trial was had and the jury returned a general verdict in favor of the plaintiff, and assessed his damages to seventy-five dollars. Upon this finding of the jury, the court rendered a judgment in favor of the plaintiff for seventy-five dollars damages and seventy-five dollars costs, and gave a judgment in favor of the defendant against the plaintiff for the residue of the costs.
To sustain this judgment it is contended, on behalf of the defendant in error, that this-is a case within the Act of 1811,
Now there is nothing on the face of the record-in this case, either in- the declaration or judgment of the Court, which shows that the mill dam as charged in the first count, or the dam as charged in the second count of the declaration, as causing the overflow of the plaintiffs land,-was connected with the erection and keeping up of a grist mill, or other water work of utility. Whether the mill dam was connected with a grist mill or other kind of a mill, and whether (if with other water works) they were of utility, and kept up so as to bring this case within the provisions of the Act of 1811, ch. 91, we are left entirely to conjecture, there being no proof whatever of these facts in the record.
But it is said secondly, that the Circuit Court being a Court of superior jurisdiction, every presumption and intendment will be made in favor of the correctness of its judgment. This precise question in two cases exactly similar to the one now under consideration, has heretofore been decided by this Court, in the case of Nicholls vs. Carter, not reported, and in the case of McReynolds vs. Cates, 7 Hum. p. 29-30. In the
These adjudications have conclusively established the principle and practice in cases arising under the act of- 181.1, ch. 91. They are exceptions to and in conflict with the general law on the subject of costs, and the record must show that the case comes within the provisions of the special law, and it cannot be inferred from the judgment of the Court.
The judgment of the Circuit .Court will therefore be reversed, and a judgment rendered in favor of the plaintiff for full costs in the court below, and the; costs in this ;court.