Clark v. Nevada Land & Mining Co.

By the Court, Whitman, J.: This case was tried by the District Court without a jury, and judgment rendered for respondent, for sixteen hundred and twenty dollars in United States gold coin, coupled with an injunction. The judgment was for damages suffered by respondent by reason of the overflowing of his hay fields, and consequent injuries by water from appellant’s tail-race, improperly constructed and negligently cared for. The injunction was for the prevention of future injury from the same cause. So far as the appeal is taken from the general judgment, save as hereinafter noticed, not only is there sufficient evidence to warrant the findings and judgment, but it vastly preponderates in favor of respondent; and the rule of decision where there is a conflict of evidence has been of^en enough announced to be considered settled. (Covington v. Becker, 5 Nev. 281.) The injunction was also fully warranted by the pleadings and evidence. The only point upon which doubt arises is the allowance of three hundred dollars for that, as found by the District Judge, among other matters, this overflow spoken of had “ killed the grass suitable for hay on his [Clark’s] land, leaving it bare and thin in large portions, and bringing up the present season worthless grasses in lieu of good hay-grass growing on the same land-last season, and [207] causing such land to be capable during the season of 1870 to produce not more than half its usual crop, and thereby injuring plaintiff’s land during the present season to the extent of three hundred dollars of its value.” This finding was based upon pleading which averred a damage of three hundred dollars, by reason of loss of crop for the next two cropping seasons; and upon evidence which showed that damage to be entirely prospective, and almost purely conjectural. Prospective damages in an action like the present are allowed only upon proof that they are reasonably certain to occur. The proof as presented in the record does not come up to the rule. The case was tried in May of the present year, and the respondent testifies : “ I have been over the land within the past few days. In some places tule is coming up, and in one or two small places no grass is growing. The grass is just commencing to come up now in the meadow land. I cannot tell what kind of a crop will grow this year, but in my opinion the land will be useless for two years to come. I consider that I will lose three hundred dollars by reason of the loss of the use of this land for these two seasons. I can’t say that I know the effect water has upon land by standing on it. The land is dry now, and if no water runs on it hereafter the tules will die out and good grasses come back again. Prior to this year this land produced the finest quality of hay; now there is as much as fifteen acres bare of grass. Tule in spots is •growing all over the ranch.” E. J. McClennan testified: “ The water is all off the land now. It is impossible to say what kind of a crop will be produced this season on this land. * * * I saw the plaintiff’s land yesterday. It is impossible to say whether any of the roots of the grass are killed. All land is benefited by water standing on it, if it does not stand too long.” Colwell testifies: “ The water standing through the warm weather last summer and fall, and through this winter, on plaintiff’s ranch, has drowned out the grass on at least one-fourth of his hay land entirely, and on other parts it is very thin, where last year and before it was very thick, and on an average it will not produce this year, in consequence of such overflow, over half the crop of [208] bay it produced last year and before that time, and it will not be so good in quality. Theo. F. Lewis testifies: Clark “ had over one hundred acres overflowed last year. That land, except about ten acres, has always produced the very best hay, first quality. The hay last year, on this land, except on the ten acres, was worth ten dollars per ton, standing, and on an average would have yielded at least one ton to the acre. From appearances, much of it will produce water grass this season; about one-half of that land, from its appearance now, will produce a fair crop; the other half will be worthless. - * * * I know the effect water has on land where it stands for a considerable time in that neighborhood. It brings up late and water grass, and kills out the grass of value for hay.” Taking all this testimony together, it will be seen that it is eminently uncertain and was insufficient to warrant the finding recited. Had the finding closed with the propositions that portions of the ground were bare and the roots of the grasses killed, it might have stood; but those propositions are connected with the bringing up of worthless grasses, and the non-producing qualities of the land for the season of 1870, which are prospective and uncertain. These propositions and the damages resulting therefrom cannot be divided, so the whole finding must fall. The amount thus found must be remitted. It is objected that the judgment is for gold coin. The Practice Act of this State provides: “ In all cases of damage the judgment shall be for gold coin.” (Stats. 1869, 228, Sec. 202.) The Supreme Court of the United States has held that a judgment against •a county treasurer for gold coin, collected for taxes under a statute of the State directing collection in such currency, was good upon the ground principally that as a tax was not a debt, nor in the nature of a debt, the Legislature might properly pass such a law: and such a claim could not be satisfied by the payment of the legal tender paper currency of the United States. (Lane County v. Oregon, 7 Wallace, 71.) A claim .for damages is not a debt, and it would seem upon analogous principle to that underrunning the decision quoted, a State Legislature might lawfully make such provision as is contested here. The appellant here has offered no [209] argument in support of its objection, and certainly this Court will not bunt reasons for abrogating a. statute which is practically just, and whose object could undoubtedly be reached in every case by proof. The judgment of the District Court will then be modified by deducting from its gross amount three hundred dollars ; otherwise it is affirmed.