Close v. Samm

Cole, J. I. The first point made by the appellants’ counsel is upon the rejection of the offered testimony of certain witnesses. The testimony was rejected because of the stage of the proceedings at which it was offered, and as not being rebutting. Since we shall reverse the judgment for other reasons, and no such question can or — 506 — will probably again arise, it becomes wholly unnecessary to decide it here. 1. damages: continuing trespass. II. The next point in order made by appellants’ counsel is upon the giving of the fifth instruction, which is as follows, to wit: “The plaintiffs, if entitled ' , i to recover at all, are only entitled to the actual damages sustained by them from the 8th to the 25th day of February, 1868, by reason of back water from defendants’ dam; and yon cannot estimate the actual damages, if any, occasioned to the woolen mills by reason of the stopping of the wheels thereof by back water.” This instruction is in accordance with the well-settled rule as to the measure of damages in such cases — that where there is a repetition or continuation of the trespass the recovery is limited to the time of bringing the suit, and a fresh action will lie for the repetition or continuation of it subsequent thereto. Sedg. on Dam., 105, 109, 137 and 144; Triggs v. Northcut, Littell’s Select Cases, 414; Blount v. McCormick, 3 Denio, 283; Thayer v. Brooks, 17 Ohio, 489. Whether, under our practice, the cause of action might not be stated in the petition with a continuando, and other special circumstances of the alleged trespass, and the claim of right so to do made by defendant, together with the facts authorizing the abatement of the dam, and a claim for its abatement and the damages accruing up to it, we need not now determine. No such case is made by the petition, and the rule as given by the court is well supported by the common law authorities. As to the second branch of the instruction it need only be remarked that there is nothing in the pleadings or evidence entitling plaintiffs to recover for damages to the woolen mill, which belongs to other parties, who, for — 507 — aught that appears, may themselves recover for their own damages, if any. 2 Evidence: pemisesby °f jary' III. The next error assigned is upon the giving of the /eighth instruction, which is as follows: “Ton will determine from all the evidence in the case, and ^ie ^acts ar|d circumstances disclosed on the trial, including your personal examination, whether the water was by the act of the defendant bached up on the premises of the plaintiffs to the damage of their water power, as alleged. If you find "that it was bached up to, or about, the line or beyond the line of plaintiff, but not in such a manner or to such a depth as to, at that time, or the commencement of this suit, cause any perceptible damage to the waterpower of plaintiffs, yon will inquire no further, but find a verdict for the defendants.” Two points are made in argument upon this instruction : First. In allowing the jury to base their verdict, in any degree, upon their personal examination. Second. In requiring them to find perceptible damage to the water power of plaintiffs before they could return a verdict for them. During the progress of the trial, “ the jury, by consent of parties and by direction of the court, proceeded, under charge of the sheriff, to inspect the dams, wheels and premises testified about, and did so inspect,” as shown by the transcript. This inspection by the (jury was ordered under the Revision, section 3061. Whenever, in the opinion of the court, it is proper for the jury to have a view of the real property which is the subject of controversy, or of the place in -which any material fact occurred, it may order them to be conducted in a body, under the charge of an officer, to the place, which shall be shown to them by some person appointed by the court for that purpose ; while the jury are thus absent, no person other than the person so appointed shall speak to them on — 508 — any subject connected with, the trial.” (A similar provision is made as to criminal trials. See section 4800). The question then arises as to the purpose and intent of this statute. It seems to us that it was to enable the' jury, by the view of the premises or place, to better understand and comprehend the testimony of the witnesses respecting the same, and thereby the more intelligently to apply the testimony to the issues on trial before them, and not to make them silent witnesses in the case, burdened with testimony unknown to both parties, and in re- I spect to which no opportunity for cross-examination or cor-I rection of error, if any, could he afforded either party/ If thejr are thus permitted to include their personal examination, how could a court ever properly set aside their verdict as being against the evidence, or even refuse to set it aside without knowing the facts ascertained by. such personal examination by the jury. It is a general rule, certainly, if not universal, that the jury must base their verdict upon the evidence delivered to them in open court, and they may not take into consideration facts known to them personally, but outside of the evidence produced before them in court. If a party would avail himself of the \ facts known to a juror, lie must have him sworn and ex>/ amined as other witnesses. 3. — trespass: flooding promises. And as to the second point made upon this eighth instruction, it also seems to us that it was not necessary for the jury to find that there was damage to the *> j 4 4 ^ water power ot plaintiffs, ii they found that the water was flowed back upon the premises of plaintiffs by the wrongful act of defendants in raising their dam. In other words, the plaintiffs brought this suit to recover damages for the wrongful flowing back of water upon their premises, and for damages to their water power. They might, therefore, recover for either. Much of the evidence on both sides related to the question as to — 509 — ■whether the flowing back of the water interfered with the plaintiffs’ mill wheels, or the water power as then utilized by them. This branch of the instruction, as applied to such evidence, was at least liable to mislead the jury, even if the court intended to speak of “the water power of plaintiffs ” abstractly, instead of the power as utilized by them at the time of action brought. 4. adverse possession: color of title. IT. The act of the legislature, under which the defendants claimed that their dam and mills were erected, provided that the dam should not be so constructed as to flow back water upon a mill then above it on the river, and which mill, the proof in this case shows, was really below where the plaintiffs’ mills now stand. The court instructed the jury that the acts of the legislature were immaterial in this action, only for one purpose, and that in determining the claim of right by defendants to back the water as explained in other instructions respecting limitation or prescription — in effect, that it afforded color of title. The plaintiffs assign this as error, and claim that since the act only gave defendants the right to flow water back to a certain point, it could not afford color of title for flowing it back beyond that point. The court was clearly right. If the rule contended for by plaintiffs’ counsel was sound, then no person could ever acquire a valid title by adverse possession under color of title, beyond the true boundary of his premises. To illustrate: A has a patent for the south half of a certain section of land, and B for the north half of the same section. A, in building his fence, sets the same five rods, more or less, upon B’s land, claiming, however, that it is the true line, and he maintains it there for the time requisite to bar an action. Now, it is no answer to A’s claim for B to say that the true line to which only A was authorized to go, was below his fence, and therefore his — 510 — patent could not afford him a color of title or claim above the true line. If it was a sufficient answer, then adverse possession, which required a color of title to mate it available, could never bar an action. In other words, it is not necessary that the title of a party in possession of property shall be valid and perfect in order to enable him to rely upon the statute of limitations. In such case he has no need of the statute. It is only when he has gone beyond his legal right that the statute is of service to him. Of course he must make the claim in good faith, and not in wantonness, as the court expressly instructed. Y. The court was also right in holding as it did that if the possession of the defendants and the flowing back of 5. — notice, the water by means of their dam was adverse, continuous and actual during the ten years, then they acquired a title by prescription, whether such adverse, continuous and actual possession was known to plaintiffs or their grantors or not. The title derived or fortified by possession comes from the fact of the actual, adverse and continuous possession, and not from notice of it to the adverse party. He must take notice at his peril. The fifth and sixth instructions asked by the plaintiffs were substantially given by the court. We have now disposed of every question made by the appellants’ counsel in their assignment of errors, except the one that the verdict was contrary to the evidence, and this becomes immaterial since there will be a new trial ordered for the errors as shown herein. > Reversed.