Eagle & Phœnix Manufacturing Co. v. Gibson

BRICKELL, C. J. The action is case to recover of the defendant damages for diverting from their natural channel the waters of the Chattahoochee river, causing them to overflow and injure the lands of the plaintiff. A party in possession, whatever may be his title, or though he be without title, can maintain the action against a mere wrong-doer. — Crommelin v. Coxe, 30 Ala. 318. Possession, the actual occupancy of lands, is a fact, (and not as counsel for the appellants argue, a conclusion of law, or of fact,) to which a witness may testify. Nor was there any reason for excluding the testimony of the plaintiff, showing that he [373] derived his possession from a former occupant who claimed title. Continuous possession of land, under a claim of title, creates a presumption of ownership, which will support ejectment, until a better title is shown. — Badger v. Lyon, 7 Ala. 564. When a question is propounded to a witness, which is not objectionable in form, but objectionable only because it may elicit illegal evidence, the injury is not in the question, or in allowing it to be put to the witness. The witness may disclaim all knowledge of the matter to which the question refers, or if not disclaiming, the answer may disclose evidence favorable to the party against whom he is being examined, and prejudicial to the party propounding the question. If the answer introduces illegal evidence, injurious to the party objecting, he can show the injury by making the answer a part of his bill of exceptions. But if he neglects this, there is no error an appellate court can revise. The answer, if any was given, may have been beneficial to him, or none may have been made. — Burns v. The State, 49 Ala. 379 ; Hirschfelder v. Mitchell, 54 Ala. 415 ; Nailor v. Williams, 8 Wall. 107. This disposes of the second, third, fourth, and fifth assignments of error, directed against questions propounded to witnesses, which are not shown to have been answered. The averments of the complaint are, that the dam across the river caused the overflow of the water. The evidence tended to show, that not only the dam, but a rock wall on the eastern bank, caused the overflow. If the wall was a part of the data, there was no variance between the allegation and the evidence. It was a question of fact, for the jury to determine, whether it was a part of the dam; and the question seems to have been properly submitted to them. The statute of limitations governing this action is § 3231, Code of 1876, which prescribes one year as the period within which certain actions therein named must be commenced. — Rountree v. Brantley, 34 Ala. 544; Polly v. McCall, 37 Ala. 20. Actual damage is not essential to support the action, “and two reasons are given for the doctrine — that wherever there is a wrong, there must be a remedy, and the plaintiff must at least be entitled to nominal damages; and that otherwise the adverse enjoyment might ripen into a title by lapse of time before there was any actual damage.”— Rountree v. Brantley, supra, and authorities cited. The first and second charges, if given, would have excluded the plaintiff from recovering nominal damages, though he may not have shown actual damage within one year before the commencement of suit, and though the wrongful act was [374] done, or the consequence of the act, the overflowing his lands, did not occur until within that period. A party requesting charges to the jury must frame them so that they will not mislead, and must be careful that the proposition, or principle of law, is precisely expressed. The court is not bound to modify or reform them, and indeed the statute prohibits it from so doing. — Code of 1876, § 3109. The charges requested by the appellant, though separately numbered, were not separately requested. The court was requested and refused to give them all. As two of them were manifestly erroneous, it was not the duty of the court to distinguish between them and the others — giving a part and refusing a part. It was bound to refuse them as they were requested. We repeat that which has been so often said in this court, that a party cannot devolve on the primary court the duty of distinguishing legal and proper, from illegal and objectionable instructions by mingling them. The court may decline the duty, and refuse instructions so mingled. Let the judgment lie affirmed.