Opinion
(February Term, 1896.)
ACTION FOR DAMAGES — MILLDAM — OBSTRUCTIONS OF STREAM — INSTRUCTIONS — EVIDENCE.
1. Damages may be recovered for injury to land resulting proximately from the maintenance by defendant of a dam, though such injury was aggravated by other causes not within defendant's control.
2. Where, in the trial of an action for damages caused by a milldam, the sole issue was whether defendant's dam injured plaintiff's land, through which a creek passed before emptying into the pond above the dam, it was not error to instruct the jury that if the injury resulted from the filling-up of the creek with sand between plaintiff's land and the pond, by the washing of the hillsides, the falling of leaves and branches, and the failure to clean out the channel, plaintiff could not recover, provided those obstructions did not result from the maintenance of the dam.
3. On the trial of an issue as to whether certain land was injured by the maintenance of a certain dam or by accumulations of sand in a creek passing through the land, evidence as to the tendency of streams generally in the county within the last few years in reference to filling up with sand was properly excluded as being too broad and general and leading to an endless inquiry, calculated to confuse and mislead the minds of the jury.
ACTION for damages to plaintiff's land by defendant's dam and mill pond tried before Timberlake, J., and a jury, at Fall Term, 1895, of CLEVELAND.
Jones Tillett for defendants.
No counsel contra.
There was a verdict for the plaintiff, and from the judgment thereon the defendant appealed, assigning as error the instructions of his Honor and the exclusion of evidence, as referred to in the opinion of the Chief Justice.
The following issue was submitted: (781) "Does the defendant's milldam damage the land of the plaintiff, as alleged in complaint?" Answer: "Yes." A creek passing through plaintiff's land empties into defendant's mill pond, a mile or more above the dam, and plaintiff alleges that the sand washing into the creek is prevented from flowing out by the mill-pond water, and that shoals of sand are produced in the creek, which throws back the creek water on his lands, to his damage. The defendant avers that the nonflow of the sand is caused by rafts and obstructions in the creek and the want of proper ditching.
Numerous witnesses were examined as to the dam, the pond and the condition of the creek, now and at former periods.
His Honor instructed the jury as follows: "The question, and the sole question, for your determination is, is the plaintiff's land injured by defendant's dam? If it is, then he is entitled to recover. If the damage results from any other cause whatsoever, and not from the dam, he is not entitled to recover. So that, if the jury believe that the injury to the plaintiff's land was caused by the filing up of the creek with sand between his line and the mill pond, and that this accumulation of sand in the creek was caused by the washing of the hillsides, the lodging of trees and brush and the failure of the landowners properly to clean out the channel of the creek, and not by the dam or pond, you should answer the first issue `No,' provided you further find that these obstructions, in the way of accumulations of sand and other things, do not result from the maintenance of the dam or pond. If the jury believe the damage to the land of plaintiff complained of was caused by obstructions in the creek above the head of the mill pond on the land of defendant Baker or other landowners (782) on the creek, or on the land of all of them, and not by the dam, then they should find the first issue `No,' provides these obstructions do not result from the dam or pond and would not go along out if the dam was removed; but if they would not go along out if dam was removed from the mill, still answer the first issue `No.'"
The instruction fully covered the contention of the parties, in plain language, and was in no way prejudicial to the defendant, and answered the merits of the defendant's prayers for instructions. Certainly, if the damage resulted from causes over which the defendant had no control, he could not be held responsible. If, however, the dam and pond were the direct cause of the damage, although aggravated by other causes over which the defendant had no control, he would still be liable. State v. Holman, 104 N.C. 861.
The only material exception of the defendant as to the evidence was the exclusion of this question: "What has been the tendency of the streams in Cleveland County in reference to the filling up with sand in the last few years?" We think that this question was too broad and general, and was calculated to mislead or prejudice the minds of the jury. The questions presented by the issue pointed to the facts and actual condition of this creek and pond. It was therefore irrelevant, and it would have been error to submit it to the jury for that reason. The question, under cross-examination and redirect, concerning the different streams in the county, in different localities and in different soils, and other natural conditions, would have led to an endless inquiry and almost necessarily confused the minds of the jury. The question was properly excluded.
No Error.
Cited: Rice v. R. R., 130 N.C. 380; Land Co. v. Traction Co., 162 N.C. 507.
(783)