Caldwell v. Gale

Manning J.: This is an action on the case for flowing the plaintiff’s land by a mill dam. The bill of exceptions shows that there was evidence before the jury proving, or tending to prove, that the dam was not. erected by defendant, but by a previous Owner of the land on which it is situated; and that notice Was given to defendant by Thomas Caldwell, when he owned the land now owned by plaintiff, of the overflowing Of it by the dam, and of a request to defendant to remove it. The Circuit Judge among other things charged the jury, in substance, that if the dam was not erected by defendant, and he did nothing more than continue it in the state it was in when he became the owner of the land, that to sustain the action it was necessary to show notice had been given to him of the nuisance, and that he had been requested to abate it, before commencement of suit; and that such notice had been • given by the plaintiff, or by some one authorized by him. The only error assigned is on this part of the charge of the Court. To sustain the action, the charge assumes, if the jury should find the dam was not erected by defendant, 1st, That he had been served with notice of the nuisance, and had been requested to remove it, and, 2d, That such notice and request from a former owner of the land flowed, Whose title plaintiff had acquired, was not sufficient. If either of these propositions is incorrect, the charge is erroneous; otherwise not. The first proposition is sustained by adjudged cases both in England and in this country. It appears to have had its origin as a rule of law in Penruddoclds Case, 5 Coke, 100. It has antiquity on its side; and is therefore entitled to all the consideration and weight that time can [84] give to an adjudication, as precedent for other courts to follow. We are not, however, aware that the question has ever before arisen in our Courts, and we do not feel ourselves bound to follow, as precedents, adjudications outside of our own State — save adjudications in the Federal Courts on questions arising under the Constitution and laws of the Federal Government' — any further than they appear to us to be warranted by the fundamental principles of the common law. Any one who upholds and sustains a private nuisance, to the injury of another, is in law answerable for the injury-done to such person. This is admitted to be law by all the cases, and is denied by none, with this qualification, viz: that the injured party give notice to the party sustaining the nuisance when he did not also create it, of the injury, and request its removal. We are not aware of any case holding it necessary to give such notice to the author of the mfisance, before bringing an action against him.' He can not claim it. It is therefore a right, if it be a right at all, pertaining to his grantee. Now, why should there be this difference between one who erects a nuisance on his own land, and his grantee, who afterwards sustains and upholds it? It is said defendant may not have known that the dam was injurious to the plaintiff, or that his rights were impaired by it. The same may be said of the author of the nuisance; and if such a plea is not good in his mouth why should it be in that of his grantee? The wrong is none the less a wrong, so far as it regards the injured party, because the wrong doer intended no injury. Why is want of notice no excuse when coming from the author of the nuisance ? Because it is a fundamental principle of law that no man shall so use his own property as to injure another, by encroaching on his rights. We know of no exception to this rule, unless it be the one in question; and we see no reason why it should not and does not apply with all its force as strongly against the grantee as [85] his grantor. But it is or may be further said, that the grantee may suppose his grantor has acquired the right to flow, from the owner of the land. He may suppose the same in regard to the title to the land purchased by him; but if his grantor had no title, he would have none, and no notice would be necessary to sustain an ejectment to oust him of his possession. And so it seems to us in regard to the right to use the land in a way to injure another. If his grantor had not acquired the right to flow, he could not have it. It is as clearly his duty to look into the right of his grantor before purchasing in the one case as in the other. It is not our intention, however, to decide the question, but to leave it open for further consideration should it hereafter arise; as we are clearly of opinion, if notice in such ease be necessary, that when it has once been given by a party authorized to give it, it will inure to the benefit of his grantee, or of any one claiming title under or through the person giving notice. On the argument it was further objected, that the evidence of the notice given by Thomas Caldwell, when he owned the land, was offered by plaintiff and received by the Court as rebutting testimony to the defense interposed by defendant, and that it could not therefore be considered for any other purpose; and also, that if plaintiff was dissatisfied with the charge, he should have called the attention of the Court particularly to this evidence, and requested the Judge to charge upon it; and that in consequence of his not having done so, he can not now refer to it for the purpose of showing the charge incorrect. We do not think either of these objections tenable. To determine what is strictly rebutting evidence, and that which, at the same time that it overthrows the defense goes to establish the plaintiff’s cause of action, reference must be had to the pleadings and the order of tidal under them. [86] The declaration is in case for flowing plaintiff’s land, to which the general issue is pleaded. On the trial, plaintiff, to make out his case, proved the existence of the mill-dam, and defendant’s possession of the land on which it is situated, and that the dam was kept up by defendant, He then showed himself in possession of the land flowed, during the time stated in the declaration, and his damages-Here he rested, having proved all that was necessary to sustain his action. Defendant to show a right in himself to keep up the dam and flow the land, introduced evidenoe of the erection of the dam in 1836, by Lawrence and Tuttle, and Lawrence’s title to the land on which the dam stands, at that time, and defendant’s subsequent acquisition of his title by a chain of conveyances from Lawrence to himself; and that he and those under whom he claimed had, for more than twenty years, kept up the dam and flowed the plaintiff’s land, without any claim having been made that he and. the persons under whom he claimed had not a right to do so. To break this defense or right by prescription set up by defendant, plaintiff proved that Thomas Caldwell was the owner of the land mentioned in the declaration, and was in possession thereof from 1823 to 1856 ; the acquisition of Caldwell’s title by himself, through sundry mesne conveyances; an agreement between Caldwell when he owned the land and Tuttle to flow the same, previous to Tuttle’s conveyance of the land on which the dam is situate — he being one of the persons through whom the title passed in going from Lawrence to defendant; defendant’s knowledge of the agreement, his repudiation of it, and a notice from Caldwell to him to remove the same. Had defendant set up his defense by a special plea, plaintiff would have been required to state in his replication, in substance, the very facts he proved on the trial in reply to defendant’s evidence. And it will not be contended that plaintiff has any less rights under the general issue than he would have had under special pleading. [87] Plaintiff conlcl not know what defense would be made, and if he had known, it was not his duty to anticipate it by countervailing testimony. Until the defense was entered upon it did not appear that defendant had not himself erected the dam. The presumption, if there was any, was_ against him, as he was in possession of it, and there was no evidence any one else ever had been. The same presumption, if any, would have been made from plaintiff’s possession, viz: that he was in possession of the land flowed when the dam was erected, and had continued in possession to the bringing of the action. It was therefore necessary for him, to break the defense, to show Thomas Caldwell’s title, and that he did not admit the right of Lawrence and his grantees to flow the land, except under the agreement between him and Tuttle, and defendant’s knowledge and repudiation of that agreement. What would not in a replication be a departure in pleading may be given in evidence in reply to a defense under the general issue. As the bill of exceptions shows no evidence of notice, save that given by Thomas Caldwell, we must suppose the Judge had that in his eye when he charged as he did, that the notice must be given by plaintiff or by some- one authorized by him. These words clearly negative the legal effect of the notice given by Thomas Caldwell, and under the circumstances we must suppose were so intended, by the Circuit Judge and understood by the jury. The judgment must be reversed and a new trial had, with costs to the plaintiff in error. Martin Ch. J. and Campbell J. concurred. Christiancy J. did not hear this case.