Opinion
12-09-1885
ECKERSON v. MCCULLOH.
W. B. Williams, for the exceptions. C. H. Voorhis, contra.
On exceptions to master's report.
W. B. Williams, for the exceptions.
C. H. Voorhis, contra.
BIRD, V. C. The first exception pertains to the quantity of earth removed by the defendants. The master finds the quantity 933 cubic yards. Nothing has been presented to satisfy me that the master is in error in this particular. The witnesses produced by the complainant made measurements of the excavations, and therefore could speak more intelligently than the witness produced by the defendant, who took no such special pains to assist his judgment. The former say that the excavation was 84 feet by 80, with a depth of 7 1/2 feet on one side; while the latter says the surface area was about 55 feet square, and not over 60 at the outside. The preponderance of testimony is so greatly in favor of the report that it would be doing violence to all rules to discard the evidence of the complainant, and the other two witnesses produced byhim, so long as they stand unimpeached. It seems to me that the other exceptions are covered by what has already been said. The weight of testimony establishes that there were 775 cubic yards of building sand, and that it was worth one dollar a cubic yard. I come to these conclusions, not only because the presumption is that the master is right, but because the testimony favors that presumption. It is true, as very frequently happens in the administration of justice, that the testimony might be clearer or stronger, but the fact that it is not overwhelmingly so is no reason why the court should not go where the weight of testimony leads. It was said that the earth was not all taken from the premises and sold, but was used by the defendant railroad company in grading. If this be true, so far as it appears, it was, to all intents and purposes, lost to the complainant. He suffered none the less whether the wrong-doer used the material in and about its own affairs or sold it for a pecuniary consideration. It never is an answer for the wrong-doer to say: "It is true, I took your property, and, although I have used it, I have received no money for it." The owner is injured all the same. The exceptions should be overruled, with costs.