Hosmer v. Warner

Bigelow, J. 1. The objection that the sheriff was not authorized to summon more than twelve persons to attend for the purpose of being sworn as jurors, was overruled in Fitchburg Railroad v. Boston & Maine Railroad, 3 Cush. 85. 2. In Palmer v. Ferrill, 17 Pick. 66, it was settled that a land-owner whose land is flowed by the efection of a dam is entitled to recover, by way of damage, the same amount as he would have derived from the use and improvement of the premises, taken in their ordinary condition, as they would have been if no dam had been erected. It follows that, in order to prove the nature and extent of the damage, it is competent to show the state of the land, the character of the soil, and the nature and value of the products prior to the erection of the dam. In no other way could the proper elements, by which the injury was to be estimated and the damages assessed, be laid before the jury. It seems to us that the evidence on this point was kept within very reasonable limits at the trial. If the evidence had been limited to a period less than six years before the erection of the dam, it would have been difficult for the jury to ascertain the original value of the land and the average amount of its yearly products. The present value of those products was competent evidence to be submitted to the jury, in order to aid them in the assessment of damages. 3. The opinions of witnesses as to the extent of the damage done to the land by the overflow of the water was clearly competent. Vandine v. Burpee, 13 Met. 288. Shaw v. Charlestown, 2 Gray, 107. 4. A complaint for flowing land being a “ civil action or proceeding,” the complainant was a competent witness, within the express language of the St. of 1857, c. 305. 5. The evidence of the sum paid by a former owner of the dam for annual damages was admissible in the exercise of a sound discretion by the sheriff, in reply to similar testimony offered by the respondent. Verdict accepted.