Folsom v. Apple River Log-Driving Co.

Cole, J. One exception relied on for a reversal of the judgment is that taken to the ruling of the circuit court holding that the witness Folsom might resort to a paper to refresh his memory as to matters about which he was testifying. The witness gave this account of the paper: “ This memorandum,” he said, “ is a copy drawn recently from an original which I made at the time of the facts or occurrences it refers to. This copy was made in town — some of them in Alden. This paper was drawn from and is a copy of a paper which I copied from my original memorandum of the facts at the time of their occurrence. The copy from which I copied this was brought by me from home, and was not kept by me because it had been defaced in carrying it, and hence this new copy was drawn off from it by Kittle, I dictating the whole. I know that copy is correct; a true copy from the original, which was also defaced; and the original memorandum was correct when I made it.” The witness added that he resorted to the paper to refresh his memory, and in resorting to it his memory was refreshed. The objection to the witness testifying from the paper was — 607 — placed upon tbe ground tbat it did not appear to be a memorandum made at tbe time, or a copy of tbe memorandum made at tbe time, of tbe occurrences. We are of tbe opinion tbat tbe objection was properly overruled. Upon tbis subject Prof. G-reenleaf lays down tbe rule as follows: “ Though a witness can testify only to such facts as are within bis own knowledge and recollection, yet be is permitted to refresh and assist his memory by tbe use of a written instrument, memorandum, or entry in a book, and may be compelled to do so, if tbe writing is present in court. It does not seem to be necessary that tbe writing should have been made by tbe witness himself, nor that it should be an original writing, provided, after inspecting it, be can speak to the facts from bis own recollection. So, also, where tbe witness recollects tbat be saw the paper while tbe facts were fresh in bis memory, and remembers tbat be then knew tbat tbe particulars therein mentioned were correctly stated. And it is not necessary tbat tbe writing thus used to refresh tbe memory should itself be admissible in evidence; for if inadmissible in itself, as for a want of a stamp, it may still be referred to by tbe witness. But where tbe witness neither recollects tbe fact, nor remembers to have recognized tbe written statement as true, and tbe writing was not made by him, bis testimony, so far as it is founded upon the written paper, is but hearsay; and a witness can no more be permitted to give evidence of bis inference from what a third person has written, than from what a third person has said.” 1 Greenl. Ev., § 436. The learned author refers to many authorities in support of tbe doctrine of tbe text; and tbe following cases cited by counsel on tbe argument are substantially to tbe same effect: Huff v. Bennett, 6 N. Y., 337; Howland v. The Sheriff of Queens Co., 5 Sandf., S. C., 219; Harrison v. Middleton, 11 Gratt., 527; Lord Talbot v. Cusick, 17 Irish Law R., N. S., 216; Chicago & Alton R. R. Co. v. Adler, 56 Ill., 344; Mead v. McCraw, 19 Ohio St., 55. In tbe present case, tbe witness, after resort, — 608 — ing to tbe memorandum, was able to speak of facts from recollection. It is true, this kind of evidence is open to more or less suspicion because of tbe unconscious effect which tbe memorandum’ may have upon tbe mind of tbe witness, and which may lead him to suppose he recalls facts when be really does not. But this affects tbe credibility rather than tbe competency of tbe testimony. Tbe witness gave estimates of tbe quantity and value of bay injured or destroyed in the years 1871, 1872, 1873 and 1874, by tbe flowage complained of. It is said that such estimates were mere wild guesses, and afforded no basis for tbe assessment of damages, and for that reason ought to have been excluded. But it is obvious that this objection also goes to tbe credibility or value of such testimony. We must presume that the jury scrutinized it., and only gave it tbe consideration which should be attached to it. It was not impossible for tbe witness, by an effort of memory, to recall such dates and amounts as be detailed in bis testimony. It was tbe province of tbe jury to determine what bis estimates were worth. Another question arising upon tbe exceptions relates to the rule of damages. It appears that tbe plaintiff owned meadow land lying along and adjacent to Apple river, from which be was accustomed to cut bay. It is alleged that these meadows were overflowed by large quantities of water which were discharged from tbe dams of tbe defendant during tbe season for driving logs, which usually continued from about the middle of May until about tbe first of July, and tbe bay and grass thereon were destroyed or injured in value in consequence of such flowage. ' Tbe plaintiff claimed that be was entitled to recover for such injury tbe value of tbe standing grass which was totally destroyed, and the depreciation in the remainder resulting from the flowing. Tbe defendant claimed, and asked tbe court so to instruct the jury,tthat if they found from tbe evidence that tbe plaintiff’s premises were injured and overflowed by tbe act of tbe defendant, tbe measure of — 609 — damages was tbe difference between tbe rental value of tbe premises bad they not been injured, and tbe rental value witli tbe injury, together with interest on tbe same. Tbe learned circuit judge adopted tbe rule as claimed by tbe plaintiff, as affording tbe true measure of damages. ¥e think this ruling was correct. Tbe bay was partly grown when injured or destroyed, and it seems to us tbat tbe net presumed value of tbe bay, less its actual value, measured tbe actual damages sustained., Suppose it bad been a^crop of wheat nearly ripe: would it be just to allow tbe plaintiff only the difference between tbe rental value of tbe premises uninjured by tbe flowage and the rental value as they were? Would tbat give him compensation for bis damages? Would be not be entitled to recover tbe value of tbe crop standing upon tbe ground? It seems to us clear tbat be would be entitled to recover that amount. In this case tbe plaintiff, a farmer, testified to the number of tons of bay injured or wholly destroyed each year by tbe flowage, and tbe actual value of tbe bay standing upon tbe ground. It is said that this was resorting to a conjectural method of estimating tbe damages. But it would seem to be tbe only way to arrive at tbe value of tbe hay destroyed. If tbe estimate of tbe witness was extravagant, bis testimony could be and in fact was controverted by tbat on tbe other side. But that tbe value of tbe crops, and not tbe rental value of tbe land, was tbe true rule of damages, is shown by Williams v. Currie, 1 Man., G. & Scott, 841; Benjamin v. Benjamin, 15 Conn., 347; and Seamans v. Smith, 46 Barb., 320; to which we were referred on tbe argument. Tbe cage of Williams v. Currie was an action of trespass by a tenant against tbe landlord for damages to tbe tenant’s crops, which bad been caused by tbe landlord’s selling, felling and removing timber without applying for leave to enter. Tbe jury assessed the damages at £300, and tbe court refused to interfere, although tbe net value of tbe entire crops did not exceed £200. Nor do we tbink there is — 610 — anything in Chase v. N. Y. Central R. R. Co., 24 Barb., 275, Easterbrook v. Erie Railway Co., 51 id., 94, and Francis v. Schœllkopf, 53 N. Y., 152, in conflict with this rule. Those were actions for injuries to real estate caused by the wrongful acts of the defendants. The plaintiffs were permitted to recover compensation for the injury; and in the latter case, which was for a nuisance, the court decided that the proper measure of damages was the difference in the rental value free from the effects of the, nuisance and subject.to it. It is true, in the case before us, the defendant was authorized by its charter to erect and maintain dams on the river to facilitate the driving of logs (ch. 430, P. & L. Laws of 1868); but it requires no argument to show that it had no right to overflow or injure the lands and crops of the plaintiff without making full compensation therefor. It appeared that there was a bridge across the river below the premises of the plaintiff, which, it was claimed, at times of high water, obstructed the water or caused it to set back and overflow the banks. It was not claimed that the bridge would produce any such effect if the waters were left to their natural flow, but only when unusual quantities were discharged from the dams above. As bearing upon this point, the court gave the following instructions: “ If the company, in using the water beyond its natural flow, would not have overflowed the plaintiff’s meadow had there been no obstruction at the bridge, but would, in using the water beyond its natural flow, have overflowed the plaintiff’s meadow by reason of the obstruction at the bridge, that fact would not excuse the company from liability to the plaintiff, provided the company had notice beforehand df such obstruction, and of the fact that its effect, together with the company’s use of the wider beyond its natural flow, would be to flow the plaintiff’s land. “ And if such an obstruction and such an effect therefrom are open, patent, and known to the company’s agent employed — 611 — to manage the company’s clams and conduct their drives, then, for the purposes of this action, they are known to the company. “ If you find from the evidence that the bridge and the wing jam formed there did not contribute to the overflow of plaintiff’s meadow, by causing the water to set back far enough to have the effect of contributing to such a result, then, of course, the bridge and the jam formed there have nothing whatever to do with this case. “ And if you find from the evidence that the bridge did have such an effect, then the company, after once learning, that, with the bridge as it was, floods let out from their dams in greater volume or force than the natural flow of the stream were likely to overflow the plaintiff’s meadows, would have no right, as against the plaintiff, to let out such floods, and, if they did let them out, would be liable for damage thereby done to his land.” We think these instructions were as favorable .to the defendant as the law would justify. It was certainly no defense to the action that some- other wrongdoer had contributed to produce the injury. This disposes of the material questions in the case. By the Court. — The judgment of the circuit court is affirmed.