Lamar v. Railroad Co.

The opinion of the Court was delivered by Willard, C. J. The grounds of appeal are the refusal of the Circuit Judge to sustain the exceptions to the Referee’s report on the amount of damages sustained by the plaintiff. The bill alleges that the defendants, in the course of constructing their railroad over lands adjoining the plaintiff’s land, had caused an obstruction to a natural water course, by which the water accumulating on plaintiff’s land had been used to discharge itself, to plaintiff’s damage. When the lands of one proprietor are drained by a natural [491] water course continuing over the land of an adjoining owner, the proprietary right of such adjoining owner is subject to a servitude to suffer such drainage to continue, whether the flow of water is continuous or intermittent.—Master vs. Riddle, 20 Penn., 415, note; Earl vs. DeHast, 1 Beasley, (N. J.,) 280. When by misuse of the servient premises, contrary to such servitude, damage is sustained by the dominant premises, in the nature of a private nuisance, the owner of the last named premises is entitled to a remedy in equity by injunction and order of abatement, and equity obtaining jurisdiction for that purpose will hold the bill for compensating damages sustained by the plaintiff, in order that full justice may be done and resort to a Court of law rendered unnecessary.—Earl vs. DeHast, 1 Beasley, 280; Bird vs. Railroad, 8 Rich. Eq., 46 ; Hammond vs. Fuller, 1 Paige Ch., 197; Van Buren vs. Van Buren, 2 Johns. Ch., 272. In the present case the facts entitling the plaintiff to a deeree'are clearly established, and it only remains to be considered whether the Referee has erred in his finding as to the amount of damage. The report of the Referee must be taken as true in point of fact, inasmuch as the testimony taken before him, if any was so taken, is not set out in the brief. Whatever conclusion of fact wa3 reached by personal inspection on the part of the Referee must be regarded as conclusive in the absence of any objection to that mode of ascertaining the facts. Assuming the truth of the facts stated by the Referee, it is clear that the failure of the defendants to place the floor of their culvert at or below the bottom of the water course was sufficient ground for charging the defendants with all actual damage sustained by the plaintiff by reason of such improper construction. The objection that the Referee did not allow to the defendants the benefit to which they were entitled from the fact that the injury sustained to plaintiff’s premises was in part due to neglect on his part to keep the ditches on his land in good condition, is not well founded. The Referee appears to have allowed force to such fact in settling the amount of damage, distinguishing that due to the misconduct of defendants. As the amount of damage found was a gross sum, we cannot say, as appellant alleged, that the Referee arrived at that amount by ascertaining an estimated sum per acre and multiplying that sum by the whole number of acres, and, therefore, the objections stated to the application of that method is inapplicable to the case. There is nothing in the mode of computing [492] the damages stated in the report that would justify our setting it aside. We have no means of determining that the damages found by the Referee are excessive, and the concurrence of the Circuit Judge with the Referee leads to the opposite inference. It was proper for the Referee to find damages for the whole period during which the suit was undergoing prosecution. A bill of this kind is in the nature of quia timet. The direct ground of jurisdiction is future, not past damage, thus constituting a material difference between the legal and equitable remedies in such cases. The ascertainment of past damages is incidental merely. The future damage contemplated by the bill is that arising at any time after the filing of the bill. Thus damage done during the pendency of the suit is within the principle on which the jurisdiction rests, and this appears by the fact that the Court may guard against such intermediate damages by injunction in cases that admitted of that remedy. To affirm that the Court may not compensate for that which it has a right to prevent, is inconsistent. The fact that in the present ease the only mode of arresting the damage is abatement, and cannot be accomplished by an injunction, does not affect the question of jurisdiction as it regards damages. The nature and consequences of the jurisdiction are the same, whether the case calls for an injunction or a decree of abatement. To turn the plaintiff out of Court to find compensation for damages, pendente lite, at law, would be contrary to all the principles of equity. Such Courts often assume jurisdiction to prevent a multiplicity of suits, but none decline a jurisdiction clearly their own for the sake of multiplying remedies. Under this view, it is not necessary to inquire whether the Code, adopted since the commencement of this suit, has worked any changes in the scope of the issues. The foregoing disposes of all of defendants’ grounds of appeal. The plaintiff demands that interest should have been to the amount of damage found. There is no ground on which this could be done. Interest is in the nature of damages for the detention of money and is never allowed in unliquidated damages.—Ancrum vs. Stone, 2 Spear., 498. Nor can damages'found as matter of fact be regarded as liquidated from the time of such finding. When the damages are included in a judgment, they are merged in an obligation of record that is certain as to the amount and time of payment, and upon such an obligation interest runs. [493] The plaintiff’s appeal must be dismissed. The appeal of the defendants must also be dismissed and the decree of the Circuit Court affirmed. Mclver, A. J., and Haskell, A. J., concurred.