Bassett v. Salisbury Manufacturing Co.

Bell, J. The amendment was objected to because, as it was alleged, it introduced a new cause of action. The substantial grievance alleged in the writ, was the maintaining a dam across the river, to the injury of his meadow above. If the dam, as it was kept up, caused injury to the plaintiff’s land, by keeping the water upon it, it was immaterial whether it was the water of the Powow river, or of the little streams flowing into it, or that falling upon it in rains. The substantial injury, then, being the damage to the land by means of water kept up by the defendant’s dam, the amendment was but a different mode of stating the plaintiff’s grievance. And it seems to us that it falls within the ordinary test of the identity of a cause of action, that it would require precisely the same evidence to support the action after the amendment, that it would have done before. It would hardly be contended that, in the original form of the declaration, very exact evidence would be required to trace the water on the meadow to the river, nor would it be a very strained construction to regard all the waters that must naturally find their outlet through the Powow river, as waters of that river, so that “ the waters falling upon and flowing into said land of the plaintiff,” would be identical with the waters of the Powow river, into which they flow. It is no test of the propriety of an amendment., — 452 — that the plaintiff’s proof will not sustain his declaration as originally drawn, but will support it as amended. The object of an amendment always is to obviate some variance between the proofs and the allegations, which, if uncorrected, would defeat the action. The ruling of the court as to the exception claimed to have been taken to the admission of the amendment, was correct. It is not, of course, that a party is entitled to the transfer of such an exception as this to the superior court. The allowance of amendments is a matter of discretion, in which the decision of the court below is ordinarily final. This amendment was admitted at the September term, 1852. It should, then, have been insisted upon, and an order of transfer obtained. This was not done, and the exception was, consequently, waived by the neglect. It was quite too late to insist upon this objection at the succeeding term. If the objection to the parol evidence of Shilling’s deed, seasonably taken, would be well founded, yet the party interested is not bound to object to evidence because it is technically open to objection. He may be silent, if he pleases. He may see no advantage to be gained by objecting to evidence, though it be inferior to what he has a right to require. But his election is to be made at once. Objections to evidence must be made when it is first introduced, and its bearing is seen. If the party, then, fails to take exception, he is taken to have waived any objection, and is precluded to insist upon it afterwards. There is no rule of practice in courts which rests on a sounder foundation, or is more universally adopted than this. If exception is seasonably taken, it gives to the adverse party the opportunity to obviate it, which it may not be in his power to do after-wards. It is suggested that the defendant’s counsel supposed the evidence of this witness to have been addressed to the court. But we find it difficult to admit this supposition. Evidence — 453 — to show the loss of a paper, or proper diligence in searching for it, and evidence of the character of the secondary evidence proposed to be offered, is properly addressed to the court; but when such evidence has been laid before the court to render the secondary evidence inadmissible, as was done here by the affidavits stated in the case, it is matter of familiar knowledge that the evidence of the contents of the lost paper is addressed to the jury. The objection to the office copy of the same deed seems not well founded. Such a copy is usually the most unexceptionable evidence, since it is a copy of a record made by a disinterested public officer, in the discharge of his official duty. It is not rendered objectionable by the fact that the plaintiff had previously attempted to prove the contents by parol. If that was done without objection, he was not bound to rest satisfied with that mode of proof. His witness’ memory may be at fault, or his credit may be impeached, and the defendant, by omitting to object to evidence of an unsatisfactory kind, can gain no right to object to that of a more reliable character. In some cases, the questions proposed to the witness Shilling, upon his cross-examination, might appear irrelevant. The evidence on which the plaintiff relied to sustain his title, was the entry of Shilling, claiming under the deed of H. Thayer. For some purposes, that entry, under a claim of right, is clearly sufficient prima facie evidence of title, whether Shilling had or had not a valid title. Possession is a good title against a wrong doer, a party without title. This has been so held in real actions. Lund v. Parker, 3 N. H. Rep. 49; Straw v. Jones, 9 N. H. Rep. 400; Bailey v. Carleton, 12 N. H. Rep. 15; and in trespass and trover; Wendell v. Blanchard, 2 N. H. Rep. 456 ; Jones v. Sinclair, 2 N. H. Rep. 319; Pinkham v. Gear, 3 N. H. Rep. 484; Barron v. Cobleigh, 11 N. H. Rep. 557; Pickering v. Coleman, 12 N. H. Rep. 148; Moor v. Campbell, 15 N. H. Rep. 208. — 454 — The defendants here are not shown to have set up any claim of title to the soil of the land in question ; and for the purpose of defeating his right to recover for any injury done to him, they stood in no position to question his title. If he had acquired a possession of the premises by wrong, that was a matter to be inquired into by those whose interests he had trespassed upon. Those who were themselves but wrongdoers or trespassers, or, at most, entitled to some easement or privilege upon the land, could not be allowed to defeat his action by denying the validity of his right to the property. But though the title of one in possession cannot be disputed for the purpose of defeating the action he has brought for an injury done to him, yet for the purpose of ascertaining the amount of the injury he has sustained, or whether the acts complained of constitute in fact any injury to him, it is always competent to inquire what is the nature and extent and character of his interest. Thus in real actions it has been held that it may be shown that the possession was merely a trespass upon the rights of the plaintiff; Atherton v. Jones, 2 N. H. Rep. 35; Murray v. Webster, 5 N. H. Rep. 391; or that it was held under a license, or tenancy at will, or for a term which has expired ; Sperry v. Sperry, 8 N. H. Rep. 477; Straw v. Jones, 9 N. H. Rep. 400 ; New Parish v. Odiorne, 1 N. H. Rep. 232; Robertson v. George, 7 N. H. Rep. 306; or upon a condition which has not been performed; Sperry v. Sperry, before cited; or that it has been abandoned ; Blaisdell v. Martin, 9 N. H. Rep. 253. So in personal actions, it may be shown that the possession under which the claim is made, was that of a mere servant ; Robertson v. George, 7 N. H. Rep. 306 ; or that the possessor was a mere depositary, and that thé general owner has brought an action for the same injury; Story on Bailments § 93 ; Poole v. Simonds, 1 N. H. Rep. 289; Odiorne v, Colby, 2 N. H. Rep. 70; Drake v. Redington, 9 N. H. Rep. 243. In such cases, the party trespassing is not necessarily — 455 — liable for the value of the property, but it may be shown, particularly in the case of receiptors for property attached, that the receiptor is liable over only for a limited amount. So in the case of pawner and pawnee, each may maintain an action, and the pawnee, by virtue of his possession, can recover only to the amount of his debt, if the taking is done or authorized by the pawner. Story on Bail. § 352. So the defendant may prove, in mitigation of damages, that the goods did not belong to the plaintiff, and that they have gone to the use of the owner. Squires v. Hollenbeck, 9 Pick. 551; Spoor v. Holland, 8 Wend. 445; Baker v. Freeman, 9 Wend. 36. The principle in all the cases is, that the party in possession is entitled to recover only a just compensation for the injury he has sustained. Prima facie he is entitled to such compensation for the whole damages done to the property, but it may be shown what his interest in the property really is, to reduce the damages he may recover to the actual injury he has sustained. The nature of the present case is such as to present this question. The amount of the damages seems to have been regarded as extremely small, so much so that the jury found it necessary to make the inquiry of the presiding justice what was their duty to do as to the matter of damages, if they found the land of the plaintiff affected by the flow age, but they could not find any damage to the land. It is settled that a party may recover some damages whenever another, under a claim of right, assumes to interfere in any way with his property, in a case where the continued exercise of such assumed right, may by time ripen into an easement and incumbrance on the property, though no actual damage be shown, because the party has no other remedy to protect himself against such encroachments but by a suit for damages. The instruction of the court, therefore, to the jury, as the case stood before them upon the evidence, was correct and proper, because the title of the plaintiff appeared — 456 — to be in fee simple, and of course of such a permanent character that he had danger to apprehend to his interests from the establishment of_ an injurious easement. But if the plaintiff’s only interest had been shown to have been that of a wrongdoer or disseizor in possession, it is very apparent that his interests could not be affected’by the possibility of an accruing easement, and under such circumstances the instruction to the jury should have been different. And where it appeared that the whole amount of damages to the property was estimated by the jury at a nominal sum, it may be supposed that if they had been instructed to inquire whether there was any damage done to the interest of the plaintiff, and if they found none, to find their verdict for the defendant, the result of the trial might have been essentially different. The ease does not show what was the character of the investigation, designed to follow the interrogatories, which were held inadmissible ; but it may naturally be supposed that they were designed to show, as was suggested in the argument, that the plaintiff’s title was defective and his interest defeasible. As the evidence seems to us to have had a material bearing, if successfully followed up, and the defendant was entitled to go into the inquiry, it was erroneously rejected, and for this cause there must be a new trial. In the argument for the defendants, no exception is taken to the legal principles-stated in the charge originally given to the jury. It seems to us not justly open to any, except that just discussed. There was a mistake in the dates given to the jury, but upon the facts presented in the case, we think it impossible to contend that any prejudice could have resulted to the defendants from those errors. The verdict shows that the jury regarded the action as maintainable, not on the ground of any appreciable damage sustained by the plaintiff, but solely on the ground that the maintenance of this dam was an infringement of tbe plaintiff’s right, for which he was entitled to some damages, merely to vindicate those rights and protect — 457 — his property from the easements which time and a repetition of the wrong might otherwise fasten upon his estate. A few days more or less could not have affected the result, and a verdict will not be disturbed on account of any error in the rulings or the charge, which could not have affected the result. Wakefield v. Alton, 3 N. H. Rep. 378; Wiggin v. Damrell, 4 N. H. Rep, 69; Jewett v. Stevens, 6 N. H. Rep. 80; Hamblett v. Hamblett, 6 N. H. Rep. 333; Stevens v. Lyford, 7 N. H. Rep. 360; Knowles v. Dow, 2 Foster’s Rep. 387. The exception which seems most relied upon, is that founded on the note sent by the jury to the presiding justice, asking information as to the instruction designed to be given in a certain contingency, and the answer given to the inquiry by the note of the justice. It is objected that to every act of the court the assent of two at least of the judges is required by law, and that although one of the associate justices happened accidentally to be present, yet he was not advised with nor his assent asked, and he took no part in the matter; that it is not competent for any judge, more especially in the absence of the counsel, to interpose his opinion as to the effect of any instructions previously given to the jury; and that the note sent to the jury must have influenced them to find their verdict for nominal damages. It ought to be assumed, as is contended, in considering this question, that the jury were influenced by the communication of the judge in arriving at their verdict. They were in doubt upon the legal principle the court intended to state for their guidance; the inquiry was made and answered for the purpose of assisting them in their deliberations. No exception was taken to the character of the instructions or to their propriety, upon the evidence then before the jury, if any instructions could properly be given to the jury during an adjournment. In Sargent v. Roberts, 1 Pick. 337, it was held that “ no communication whatever ought to take place between the judge and the jury after — 458 — the ease has been committed to them by the charge of the judge, unless in open court, and, when practicable, in the presence of the counsel in the cause.” But we do not understand that this is the rule recognized in this State, and we can hardly regard it as sound doctrine, in its full extent, any where, since cases may be readily supposed where a power to communicate with the jury is indispensable. The power of the court, in cases of this kind, was examined in Shapley v. White, 6 N. H. Rep. 172, and though the case of Sargent v. Roberts was before the court, the practice of giving instructions upon matters of law, after the charge and during an adjournment, was vindicated, both as to the power and the propriety of its exercise. The case of Shapley v. White speaks of the court, and not of a judge. It does not seem to us that there can be any reasonable distinction based on this circumstance. The charge to the jury is, in our practice, made by the judge who presided at the. trial, and if any explanation or repetition of it is required, it must naturally be made by him. The concurrence of his associates may well be presumed, if they are attending the court, as it is, if not objected to, to the charge itself. The power of holding communication with the jury, in such cases, is one which, we think, should not be ordinarily nor often resorted to, but of its propriety, in special cases, we entertain no doubts. Verdict set aside.