Pickett v. Condon

Goldsborough, J., delivered the opinion of this court. The appellants claim damages of the appellee for hindering and obstructing their mill in grinding of grain and manufacturing the same into flour, and set out in the first count of their declaration the manner in which the injury was inflicted. They also allege, in the second count, a further injury committed by the defendant, by destroying the grass and grain growing on their land, in the manner mentioned therein. The appellee pleaded that he did not commit the wrongs alleged in plaintiffs’ declaration. At the trial of the cause, three exceptions were taken by the appellants to the ruling of the [417] Circuit court, one upon the rejection of the evidence offered by them, one upon the appellee’s prayer granted by the court, and the third upon the refusal of the prayer offered by the appellants. (Decided June 19th, 1862.) In our opinion, the ruling of the Circuit court, in rejecting the evidence mentioned in the first exception, was correct. The evidence offered by the plaintiffs, though it might establish a substantive cause of action, did not tend to prove the cause of action laid in the declaration. We also think that the prayer of the defendant, granted by the court and contained in the second exception, was properly granted. The appellee being the grantee of the party who erected the mill-dam, and the appellants having purchased the property on which the alleged injury was inflicted after the erection of the dam, not only purchased the property with the inconvenience, but were bound to give notice to the appellee of the injury. See 2 Chitty’s Pl., 771, note, and the authorities there cited. The evidence relied on of notice was not legally sufficient for such purpose. For the reasons assigned in reference to the second exception, we think that the prayer of the plaintiffs, in the third exception, was properly rejected. Judgment affirmed.