Luning v. State

Laerabee, J. This case is brought to this court by a writ of error to the Dodge county circuit court. The plaintiff in error was indicted tor erecting and maintaining a mill-dam, which caused the water to overflow a large tract of heavily [219] timbered land, in the immediate vicinity of the village of Cedarburg, in "Washington county, and which was alleged created unpleasant and unwholesome vapors and sickness to the inhabitants of that village. Many witnesses residing in the village were called by the counsel for the state to prove the situation of the mill-pond, the effect of the stagnant water upon standing and fallen timber, and the prevalence of intermittent fevers to an extraordinary extent subsequent to the ere'ction of the dam. After stating the facts, the question was asked, and the reply of the witnesses permitted to go to the jury: “What effect has the overflowing of that land had upon the public health hr that vicinity ? ” This is tire first assignment of error, and on the ground that the opinions of these witnesses, not being experts, was incompetent as testimony. The general rule that the opinions of witnesses are confined to men of science, ait or skill in some particular branch of business, is well settled, and was admitted by the counsel for both parties. But it was contended by the counsel seeking to introduce this as testimony, that the witnesses, having detailed the facts, were propex’ly allowed to state their opinion in connection with them; that they were, from their position and means of information, experts for that particular pxupose. They wore inhabitants of the village; had lived there before the erection of the dam, and afterwards; had observed the general good health before, and the universal sickness after- — there being not enough in health to minister to the necessities of the sick; that the stench from the dam was intolerable, compelling the closing of the doors and windows, and-the resort to other expedients to remove its influence. It was upon this groirnd that I considered this an exception to the general rale, and. permitted the evidence to go to the jury. But I am satisfied, upon further examination, and concur in opinion with the other members of the court, that the evidence introduced was not within the general rule; and though, perhaps, hi this case [220] operating unreasonably, yet tbe rule should have been strictly applied. For this error a new trial must be had. Auother ground of error assigned is, that the witness Whitney, being a medical man, was not allowed to answer the following question: “You state you heard all the evidence given on this trial; now, from that evidence, did laming’s mill-pond, in your opinion, cause the sickness spoken of by the witnesses ? ” In tins the ruling was correct. The answer to this question would have been an opinion as to the general merits of the cause, the weighing of conflicting testimony, and swearing to a legal conclusion ; in fact, usurping the province of the juiy. The facts, as given in evidence, might have been stated to the witness, and then his opinion upon them would have been competent; or he might have given his opinion upon a similar case, hypothetically stated. The next ground of error to be noticed is the refusal to permit the counsel for the defendant below to read from medical books. This is a matter generally withiu the discretion of the court, and therefore not the subject of a wait of error. In many cases, no doubt, it would be proper to allow books of science to be read, though generally such a practice would lead to evil results. But certainly counsel have no right to read indiscriminately what books they may choose, as is contended by the counsel for the plaintiff in error. The latitude to be given to counsel in argument is always under the control and in the discretion of tire court. The other assignments of error to be noticed are in the charge to the jury, and upon the motion in arrest of judgment. The counsel for the defendant below asked the judge to charge that, as the dam in question was erected under the act of the territorial assembly authorizing the construction of mill-da,ms across streams not navigable, no indictment could be sustained by the state for a public nuisance created by such dam. Though that act has been decided by this court, in the case of Newcomb v. Smith, ante, to be valid, yet it cannot be con221 ceivecl that by erecting a dam in accordance with its provisions, license is thereby given to create and continue a nuisance. Such a construction of the power given in that act, to owners of mill property, would be utterly inconsistent with the right of every citizen to call in the authority of the state' for protection against the unlawful encroachments of others. How far soever the privileges given to null owners may be held to extend, most certainly no such immunity as is here claimed exists. The right is given to any person to build a dam, and flow the water upon the lands of others; but if he thereby creates a public nuisance, he is as liable to an indictment in that regard as if no such statute were in existence. 1 Marsh. (Ky.) 535; Taylor v. Major, id. 552. This is the only point hi the charge given to the jury that it is necessaiy to examine, and this, as well as the rest of the charge' was correct. One of the grounds on which the motion in arrest was founded, is, that it does not appear that the indictment was found in the name and by the authority of the state. This point is settled by this court in the case of the State v. Delue, ante. Judgment reversed.