Chapman v. Copeland

Campbell, J., delivered the opinion of the court. The evidence in this case is very conflicting, and this made it especially important that there should be no conflict in the instructions to the jury. The instructions for the plaintiff propound the law correctly. The second instruction for defendant directs the jury to find for the defendant, unless the plaintiff had sustained damage “ in amount appreciable and ascertainable by evidence to the satisfaction of the jury.” This denies to plaintiff nominal damages, and requires him to prove special damage, as the consequence of the diversion of the water of Carr’s Creek from its natural course, by the ditch of defendant, so as to flow on plaintiff’s land. This is not the law. 2 Greenl. on Ev., sec. 474; Ang. on Watercourses, sec. 429 et seq.; ib. 416. The third instruction for defendant is erroneous. If plaintiff- suffered damage after he purchased the land, -from the ditch of defendant, he is entitled to recover, whether the defendant did anj'thing to the ditch after plaintiff’s purchase or .not. Ang. on Water-courses, sec. 399 et seq. For the error in giving these instructions for the defendant, we reverse the judgment and remand the cause for a new trial.