Savannah & Ogeechee Canal Co. v. Bourquin

Trippe, Judge. 1. We do not propose to take up seriatim the various grounds in the motion for a new trial, but to give such direc- ■ tions as to the main questions involved that the case may, on a new trial, be relieved from any errors of a material character which may have been committed. The action was for damages caused by the defendant’s keeping the sides and banks of the canal in a bad and ruinous condition, for want of necessary mending and repairing of the same. There was no evidence, so far as the record discloses, that the bottom of the canal had become foul or filled up. The charge of the court, therefore, on that point, and as to the damages resulting from that cause, was without evidence to authorize it. The other charge, that if the jury found that any damages had resulted to plaintiff by reason of the commission or omission of any act of the defendant to keep its canal in proper order, the plaintiff is entitled to recover, is too broad and general for the pleadings. Indeed, it would be difficult to prepare the pleadings so that they would authorize such a sweeping charge against any kind of negligence: 1 Chitty’s Pl., 381, 392. 2. It was claimed, in behalf of the canal, that as it had an opening in its side in Raspberry swamp for supplying the canal with water from the swamp, as a reserve, and that it had been so used for more than twenty years, and that during that period there had been at certain times or whenever the water ivas up in the canal, an outflow of water through the opening into the swamp, and from it over the adjoining [388] lands, that a prescriptive right to such outflow had been acquired, or, in other words, it had an easement by prescription in the adjacent lands, so that it had the legal right to overflow them. Granting the legal principle involved in this proposition, still it would confer no right on the defendant to increase such outflow either intentionally or by negligence, so that it would cause the water to escape from the swamp in such quantity that it would submerge the land of an adjacent proprietor which had not been theretofore overflowed. If one acquires, by prescription or grant, the right to divert a stream so that it covers an acre of his neighbor’s land, he does not thereby get authority to connect another stream with that, and cover two acres, or by thus increasing the water in the new channel to cause the overflow of the land of another neighbor. The right gained is limited to the extent to which it has been used. One may have the privilege of letting the water run off a building of fifty feet in length on another’s lot, but he cannot claim from that the right to extend his building to one hundred feet, and thus double an easement in his neighbor’s property. Because he has had the. coat long enough to give him title to it he cannot, therefore, by law, demand the eloaJe also. This rule is thus stated in Gale & Whatley, on Easements, page 330: “ As every easement is a restriction upon the right of property of the owner of the servient tenement, no alteration can be made in the mode of enjoyment by the owner of the dominant tenement, the effect of which will be to increase such restriction. Supposing no express grant to exist, the right must be limited by the amount of enjoyment proved to have been had.” 3. As to the measure of damages in cases of a continuing trespass, such, as overflowing one’s land, the authorities are almost uniform that it is limited to those which have occurred before action is commenced, and that subsequent damages flowing from a continuance of the trespass give a new right of action: Robinson vs. Bland, 2 Burr, 1077, 1086; Duncan vs. Markley, Harper’s Reports, 276; Blount vs. McCormick, 3 Denio, 283; Pierce vs. Woodward, 6 Pick., 206; 3 Black [389] stone’s Commentaries, 220; and 2 Espinasse, N. P., page 269, where it is stated that it is not necessary to the justice of the case to include subsequent damages, because the plaintiff may bring his action toties quoties, he may sustain an injury: See, also, Langford vs. Owsley, 2 Bibb, 215; Wilcox vs. Plummer, 4 Peters, 172-182; 3 Comyn’s Digest, 343. The case of Duncan vs. Markley, supra, is identical with this case in principle, as that was for damages to one man’s niill caused by the dam erected by another for his mill. Loss or damage accruing subsequent to the suit may be recovered where they az-e the mere incident or accessoz-y of the principal thing demanded, and another action could not be maintained for them, or, as Lord Mansfield expresses it, 2 Burr, supra, “ where no satisfaction can be had for them by a new suit.” And in trespass for bz-eaking plaintiff’s leg it was. held proper to show the jzrobable future condition of the limb: 23 Wendell, 425. In such cases as this hitter and similar ones, thez-e is no question but that all the consequences of a single act of trespass which constitutes damage, may be proved. The court, then, we think, was in error when it charged the juz-y that plaintiff “might recover a fair rental per annuni from the date of the overflow until the time of trial.” Loss or damage accruing after the action was brought could not be recovered in this suit. 4. The court also charged that the plaintiff could recover for the “outlay” by him. We understand by this it was meant that the plaintiff was entitled to recover for the whole expenditure incurred in 1868 in building houses, buying mules and feeding them, and for the hiz-e of hands, which were not used or worked on the place ozi account of its being largely under water. From the testimony on this point, as it is given in the record, it would be almost iznpossible to say what, if anything, was the loss of plaintiff on that account. Young Mr. Bourquin states that “three mules were bought at $150 each; cost of feeding them was about $15 00 or $20 00 per month; hire of hands to take care of them $20 00 per month and rations. Had eleven hands at work that season at thirty390 five cents a day and rations.” He farther says: “Of the three mules bought, plaintiff has two now. One was sold for $100 or $150 00.” The plaintiff testified, “that in the spring of 1868 he resumed planting, or attempted to do so, hiring hands, building houses, buying mules, utensils and implements, expending therein about $3,500 00.” He then adds that he was compelled to give up the hope of making a crop, on account of want of repair of the canal, and that owing to certain leaks and breaks in its banks the water overflowed his fields and prevented him from preparing his land for cultivation.” Neither of the witnesses state how much of this expense was a loss on account of not cultivating the overflowed fields. It certainly was not the whole $3,500 00, for one of them states that eleven hands were worked that season. Nor was the defendant liable for what was paid for the purchase of the mules, or building the houses, unless they were worthless to plaintiff. He sold one of tire mules — still has two, and the houses, and, doubtless, the utensils and implements, and also had the work of all the hands he seemed to have paid for and fed. Other hands who did no work were paid nothing. The charge of the court, taken literally, would have given the plaintiff his whole “outlay” for all these things, even if no loss or damage resulted from their non-use. Even had the court put the proper limitation on his charge, and the pleadings had authorized it with such limitation, there Avere not sufficient data to ascertain Avhat proportion of the expenses so incurred Avas a loss to plaintiff by reason of the default of the defendant. It may be added that if the plaintiff knew at the time such outlay Avas made that his land was submerged so he could not cultivate it, he could not tax defendant for his loss resulting from the expenses paid out by him. We think a new trial should be granted, and another investigation had. Judgment reversed.