Goodrich v. Dorset Marble Co.

The opinion of the court was delivered by Tyler, J. If the plaintiff was entitled to recover in this action he was entitled to recover for all the injuries to his crops and land that were occasioned by the defendant's unlawful acts committed before the commencement of the suit. The plaintiff’s evidence, as recited in the bill of exceptions, and which was admitted subject to the defendant’s objection and exception, clearly, bore upon the question of these injuries and could not be properly excluded although it had a tendency to show some injury caused by similar acts done after the [284] suit was commenced and for which the plaintiff could not recover in this action. The plaintiff was not restricted in his right of recovery to the injury to his land in the year 1885. All the effects of the flowage might not have been apparent until the following year, and the evidence in question was admissible as tending to show the full extent of the injury caused by the alleged wrongful act; and in this view it was proper to show by comparison the condition of the meadow in the year 1886 and its condition in the preceding year. It was doubtless a somewhat difficult task for the jury to determine how much of that condition was attributable to the wrongful acts of defendant committed before the bringing of the suit and how much to such acts committed thereafter; but it was the province and the duty of the jury to determine this question and the instructions of the court on this subject seem to have been full and explicit. Certainly, the fact that the defendant continued the wrongful act after the suit was brought, should not operate as a shield to protect it from the full consequences of such act committed previously thereto. The defendant’s counsel requested the court to instruct the jury that, ‘ ‘ If the jury find that the sand deposited by the defendant in said river or stream does not interrupt the flow of the water in said stream, and that there is as much current in the stream above the dam as there is below it, then the plaintiff cannot recover damages of the defendant in this action; that the comparative depth of water above and -below said dam was not material to the issue in this'case.” The court refused so to charge, but left it to the jury to decide as a question of fact, upon all the evidence before them, whether or not the bar obstructed the water as complained of. In .this there was no error; as it was clearly a question of fact for the jury. We find no legal error in the trial of the cause in the court below and its judgment is therefore affirmed.