Middlebrooks v. Mayne

Lumpkin, Justice. The motion for a new trial contained a large number of grounds. We shall not undertake to discuss in detail the facts of the case, nor all the legal questions involved. We think that the case, upon its merits, is controlled by the rules of law announced in the head-notes, and that the jury returned the proper verdict under the evidence. Most, if not all, of the legal questions have been definitely settled by repeated adjudications of this court, and are no longer left in uncertainty. We will therefore very briefly notice the points involved, in the order in which they are stated. 1. It was complained that the court erred in charging, that in order to entitle the plaintiff' to recover, he must bring evidence to sustain the allegations of his declaration. This was only another -way of saying that the plaintiff' must prove his ease as laid, a fundamental principle the correctness of which cannot be doubted. The charge complained of, when taken in connection with all the instructions given by the court, did not, as com tended, limit the plaintiff to the benefit only of the evidence which Jfie had introduced, nor render it necessary for him to prove all his immaterial'allegations. The declaration, while not divided into counts, did set forth several distinct grounds of recovery, upon either of which a verdict in his favor might have heen sustained; but the charge as a whole did not require him to prove [452] enough to establish all the grounds of recovery alleged in the declaration, in order to entitle him to recover upon one only of them. 2. The familiar rules stated in the 2d head-note are based upon the idea, that one who erects a nuisance which injures the property of his neighbor is supposed to know the fact, and therefore is not entitled to notice to abate the nuisance before becoming liable to suit; but an alienee of the person erecting the nuisance is entitled to notice before being sued, he not being presumed to know that its erection in the first instance was unauthorized, or that the person whose property was injured had a right to complain of it. For the reason first above indicated, however, the alienee is not entitled to such notice before becoming liable to an action for injuries caused by changes made by himself in the character of the nuisance as originally constructed. 3. Where the nuisance complained of is a mill-dam, a simple request to abate the same would be sufficient, and it is not essential that the person thereby injured should request the party maintaining the dam to abate the nuisance “by lowering or taking the dam down.” We do not think, however, this a matter of much moment. It is difficult to conceive how one objecting to the existence of a mill-dam could very well request the owner to abate it so as to stop and prevent further injury to the party complaining, without asking such owner to ■either make it lower or to take it down altogether. 4. Where one has acquired a right as against another to maintain, without liability, a dam at a given height, he certainly also has the right to repair leaks in it, or rebuild in case the dam is washed away. It is true that a parol license, until acted upon, is ordinarily revocable; but where it has been acted upon, and money expended on the faith of it, it becomes irrevocable. If a dam has been erected under a parol license, and no expense at [453] all has been incurred except in its erection, and it washes away, the party granting the original license may then revoke it before the other has incurred any expense in rebuilding; but- where, in connection with the dam, money had been expended for buildings, machinery, etc., the mere washing away of the dam alone would not authorize a revocation of the parol license. The successor in title of one having rights under a parol license is not liable in damages for exercising such rights, either to the person against whom the original rights existed, or to his privies in estate. 5. In charging with reference to the alleged parol license which the defendants claimed had been granted to their predecessor in title, the court committed a slight verbal inaccuracy; but it was of no great importance, and certainly would not authorize a new trial, it appearing that the court stated the principle of law governing the subject correctly, and in such manner as not to mislead the jury. 6. The declaration certainly claimed damages because of an increase alleged to have been made in the height of the dam by the defendants. The latter denied ever having made any such increase, and sustained their denial by a decided preponderance of the evidence. Exception was taken to a large number of charges given by the court, these exceptions being based upon the ground that the plaintiff had abandoned this branch of his case, and had not insisted upon it before the jury. Be this as it may, it is quite certain the declaration was not amended so as to strike out the allegations as to the alleged increase in the height of the dam as a basis of recovery, and the court certifies that the plaintiff’s contention upon this issue remained in the case until the end of the trial. It follows that the charges complained of were not erroneously given. 7. It appears from the certificate of the presiding [454] judge, verifying the grounds of the motion for a riew trial, that the general charge given to the jury fully submitted to them all of the plaintiff’s contentions, and fairly set forth each of the grounds upon which his action was based. The record is voluminous, and in many respects tedious; but we have given it a thorough examination, and find no error authorizing a new tidal. Judgment affirmed.