Ingram v. Yadkin River Power Co.

Clark, C. J. There being an apparent irregularity in settling the ease on appeal, on motion of plaintiffs the record was remanded to the judge; with leave to amend the statement of the case, in an opinion by Stacy, J., at this term. The case now comes up before us on the return to the certiorari. The plaintiff in his brief relies upon the assignments of error 5 and 6. No. 5 is that the court refused to submit the issue as tendered by the plaintiff, “Was the land of plaintiffs injured by the maintenance of the dam and flash dam of the defendant as alleged in the complaint?” but divided it, submitting the question of injury by the concrete dam and flash dam under separate issues. No. 6, the other assignment of error relied on, is that the court charged the jury that there was no evidence that the lands of the plaintiff were injured by the erection and maintenance of the defendant’s “concrete dam,” and instructed the jury to answer the issue “No.” The court makes return to the certiorari as follows: “In obedience to the suggestion of the Supreme Court for a more definite finding of fact touching the abandonment by the plaintiffs of claim for damages resulting from the erection and maintenance of the concrete dam, the court finds the following facts: “That after the plaintiff, W. P. Ingram, and his witness, A. E. Lyman, had testified that the back water from the concrete dam stopped at or near Coleman’s Mill, a distance of one and one-half miles below plaintiff’s premises, and plaintiff had further testified that no damage had been done to his crops or lands prior to the erection of the flash dam, the court inquired of counsel for plaintiffs if they contended that the plaintiff’s premises had been injured by the erection and maintenance of the concrete dam, and counsel replied that they did not claim that the lands or crops of the plaintiffs had suffered any injury prior to the erection of the flash dam, the trial thereupon proceeded on the theory and with the understanding upon the part of the court that the plaintiffs did not make any contention that they had been damaged by the erection and maintenance of the concrete dam, but that their damages, if any they had sustained, resulted from the erection and maintenance of the flash dam.” *413 “Tbe appellant cannot be allowed in tbis Court to maintain a position inconsistent witb or directly antagonizing tbe basic facts of bis own suit or question orders wbicb tbe Court bas made in furtherance of bis own application,” or admissions on tbe trial below. Lipsitz v. Smith, 178 N. C., 100, quoting Brown v. Chemical Co., 165 N. C., 421; R. R. v. McCarthy, 96 U. S., 258; Bank v. Dovetail, 143 Ind., 534. To same purport, King v. R. R., 176 N. C., 306. Tbe plaintiffs, baying abandoned on tbe trial any claim for damages arising from tbe erection of tbe concrete dam, cannot be beard to assert on appeal that it was error in tbe court to instruct tbe jury to that effect. On tbe above finding of fact we must adjudge tbat there bas been No error.