Casebeer v. Mowry

The opinion of the court was delivered, July 3d 1867, by Thompson, J. — This was an action for the continuance of a nuisance by flooding the plaintiff’s land. The suit was brought in 1865, and there was a verdict and judgment for the defendant on the 7th of February, 1867. A previous suit for the same nuisance, occasioned by the same dam, and between the same parties, had been brought in 1862. It was tried in February, 1865, and there was a verdict for three cents damages in favor of the plaintiff, on which judgment was entered on the 9th February, 1866; that was a year before the trial of the case before us. On the trial of this case below, the plaintiff gave the verdict and judgment in the previous case in evidence ; but the learned judge charged that it was not conclusive on the defendant, because it did not exist when the suit was brought. This was an error. In Duffy & Mehaffy v. Lytle, 5 Watts 120, this is conclusively settled. The syllabus, which very accurately represents the ruling of the court, states the principle thus: “A prior judgment upon the same cause of action sustains the plea of a former recovery, although the judgment is in an action commenced subsequently to the one in which it is pleaded.” The date is of no consequence ; it is the fact of an adjudication upon the same subject-matter, and between the same parties, which gives effect to the former recovery. Now the operation of the rule is the same, whether the record be pleaded by one or other of the parties. Of course the adjudication only establishes the right of the plaintiff and the wrong of the defendant, but not the amount of damages. Although in the first action nominal damages only may have been given, that establishes the right, and in a second real damages may be recovered if shown. On the question of the amount of damages, all above nominal may be contested. Hence, in this case the admission of testimony as to this point was not error. [423] But there was error in the ruling as to the effect of the former recovery. Of course this is only so if the dam was of the same height when the second suit was brought. That it was so we may infer from the fact that nothing was alleged to the contrary. If the tail-race of defendant’s mill made on the plaintiff’s land was an injury, occasioned by the defendant’s dam, the conclusiveness of the former verdict and judgment would be the same as to it as to any other portion of the land. But it is an incomprehensible idea to me, how land below the dam should be injured by its back flow ! If injured, the trespass should be remedied in some way appropriate to its character. We have not the declaration as we ought to have had in these cases. Nor have we any plot or diagram to enable us to understand this matter, perhaps, as we might do if we had them, and therefore we will say nothing further in regard to this part of the case. The ease of Rockwell v. Langley, 7 Harris 502, is important as showing how far special issues after a first finding are allowable. We think the learned judge was bound to affirm the plaintiff’s 4th point. The owner of a dam, although erected on his own land, is answerable to his neighbor for injury to his land in times of ordinary freshets, occasioned or enhanced by the dam. This doctrine is clearly announced in Bell v. McClintock, 9 Watts 119, and rules the point. In erecting his dam the owner is bound to regard his neighbor’s rights and security, not only in ordinary stages of water, but in those stages occasioned by ordinarily recurring freshets. If, by his dam, he aggravates the injury of an ordinary freshet, he will be responsible. He ought to provide against this in erecting his dam; if he cannot, then it is a case in which he must procure a license from his neighbor to suit the exigency, or not erect it at all. This assignment of error is sustained. The court committed another error, we think, in applying in effect the doctrine de minimis to a case of this kind. The amount of damages is not the sole object of an action of this nature. The right is the great question. It will not do to hold that one man may with impunity invade the premises of another by anything in the shape of a nuisance, because the damage may not be appre eiable. The law does not justify or excuse any such invasion, be it ever so small, and allows the recovery of nominal damages at least, as evidence of the plaintiff’s right: 2 Rawle 83, 7 W. & S. 9, to which many other authorities might be added. It was said by the learned judge in his charge that the plaintiff in the second action claimed but nominal damages. This he did in the first; and as the first verdict and judgment on the score of conclusiveness of his right to maintain the action was as effectual as a dozen, it looks as if the object in pressing it to trial was to afflict the defendant with costs and expenses — certainly not a [424] neighborly incentive by any means — and this may have involuntarily operated somewhat on the second trial, yet he was entitled to the exact measure of the law in his case notwithstanding, whether the surmise be just or unjust. Under the circumstances we reluctantly reverse the judgment, as we learn that the defendant reduced his dam after the first finding, showing a proper and prompt obedience to the law. Whether sufficiently reduced or not we do not know, and intimate nothing more, than in our opinion, this would have been a more proper subject of inquiry, if not satisfactory to the plaintiff, than a repetition merely of the first controversy. Judgment reversed, and venire de novo awarded.