Opinion
(December Term, 1851.)
1. When an act of violence of itself is complained of, trespass vi et armis is the proper action; when the consequences only are complained of, then case is the proper action.
2. In some cases the party may waive the trespass and bring case for the consequential damages, alleging that the act was negligently done. But where the act is alleged to be wilfully done, trespass is the only action. The right of election cannot exist except in cases where there is a separate and distinct form of action besides the trespass.
3. Where it is alleged that the plaintiff was the owner of a mill a short distance from one occupied by the defendant, on the same stream, and that the defendant wilfully, and with intent to injure the plaintiff, frequently shut down his gates, so as to accumulate a large head of water, and then raised them, by which means an immense volume of water ran with great force against the plaintiff's dam and swept it away: Held, that trespass and not case was the proper remedy.
APPEAL from Bailey, J., at Fall Term, 1851, of MONTGOMERY.
Mendenhall and Strange for plaintiff.
D. Reed, Kelly and Haughton for defendant.
Case for breaking and otherwise injuring plaintiff's milldam.
Plaintiff alleged that defendant, who owned a mill above plaintiff on the same stream, repeatedly shut down his gates, particularly on Sundays and at night, and, after the water in defendant's pond had accumulated to as large a head as possible, raised his gates and discharged his water in immense volumes, which ran with great force and violence, so as to injure plaintiff's dam below; and that these acts were done by defendant wilfully and with the intent to injure plaintiff, and that he was injured thereby.
(51) Plaintiff introduced witnesses who testified to facts sustaining the allegations in his declaration as to the wilful injury of the plaintiff by the defendant, and further, that very large volumes of water ran with great force and violence against plaintiff's dam below, by the sudden raising of defendant's floodgates attached to his dam, by which plaintiff's dam was carried off, or essentially injured; that defendant had been in possession of his mill from seven to ten years, and that plaintiff's mill and dam were about one-half mile below defendant's. Plaintiff was in possession and owned the mill below. Upon this evidence, defendant's counsel moved the court to instruct the jury that the action could not be maintained, as from the evidence the injury was immediate and wilful, and not consequential; that whatever injury was sustained was by the wilful and immediate act of defendant, and, therefore, that the action should be trespass vi et armis. This instruction that court declined to give, but instructed the jury that the action was well brought; whereupon the jury, under this instruction, rendered a verdict for plaintiff. Appeal by defendant.
The declaration alleges that plaintiff was the owner of a mill about one-half mile below a mill, on the same stream, owned by defendant; that defendant repeatedly shut down his gates, so as to accumulate as large a head of water as possible, and then raised them, so as thereby to discharge an immense volume of water, which ran with great force against the dam of plaintiff and swept it away; and that this was done by defendant wilfully and with an intent to do the injury. The only question is, Can an action on the case be sustained?
When the act itself is complained of, trespass vi et armis is the proper action. When the consequences only are complained of, then case is the proper action; or, as the rule is expressed in the books, trespass lies where the injury is immediate — case when it is consequential. There is no difficulty as to the rule. The difficulty is as to its application, and it sometimes requires an exceedingly nice perception to be able to trace the dividing line. But this case is settled by authority, and there is no occasion to resort to reasoning or to a discussion of principles. In Scott v. Shepherd, 2 Blackstone, 892, Grey, C. J., cites a suit from the register, 95a of trespass vi et armis, for cutting down a head of water Maliciously, which thereupon flowed down to and overwhelmed another pond, which is our case.
It is true that in some cases, although the injury be immediate, the party has his election, and may waive the trespass and bring case for the consequential damage; as if one take another's horse, he may elect to bring trover (which is an action on the case); or if one in driving his carriage run on that of another, although the damage is immediate, case may be sustained, alleging that defendant so negligently drove his carriage that it ran against that of plaintiff and did great (53) damage; and the defendant is not allowed to defeat the action by averring that the injury was more aggravated for that in fact he drove against the carriage of the plaintiff on purpose and with an intent to do the injury. Williams v. Holland, 10 Bingham, 116. But if the declaration alleges that defendant took the horse from the possession of plaintiff, instead of supposing that he found it; or that the defendant wilfully drove against the carriage instead of ascribing it to negligence, case cannot be sustained, because these allegations are inconsistent with the nature of that action, and it is simply an attempt to recover in case for a direct, wilful trespass, which is the peculiar subject of another form of action. To maintain case, you must waive your ground of complaint on account of the trespass. Day v. Edwards, 5 T.R., 648. It is apparent, then, that this right of election cannot exist except in cases where there is a separate and distinct cause of action besides the trespass. Admitting, for the sake of argument, this to be one of those cases, the plaintiff has no ground to stand on. He has not waived the trespass — that is the burden of his complaint. But it seems to us this is not one of those cases, and we are inclined to think that case could not be maintained, if the declaration had been ever so carefully or skillfully drawn. Suppose the defendant had planted a cannon on his dam and wilfully fired at plaintiff's dam until it was demolished, it could not be distinguished from the present case — the only difference, being in the kind of force. In the one, the dam is destroyed by metal propelled by the force of gunpowder; in the other, it is destroyed by water, propelled by the force of gravitation — the water being kept back on purpose to increase the head, and thereby add to the power of the propelling (54) force. Both are neither more nor less than wilful trespass. And although the intent is not the test of liability, yet when the damage is immediate it is the test of the proper form of action. If the damage be immediate and the act is wilful, trespass is the only action.
There is no question that the doctrine by which plaintiffs in certain cases are allowed to waive trespass and bring case, which is finally settled by authority, is an indulgence granted on account of the difficulty of tracing the dividing line; and the principle is that the plaintiff may, without injustice to the defendant, take the most charitable view of the case. But this doctrine only applies when two causes of action are involved; then one may be waived and still leave ground to stand on; but if the case involved merely a cause of action for trespass, to allow an election to bring case would be an absurdity, as if one wilfully shoots down another's horse or commits a battery on the person.
PER CURIAM. Venire de novo.
Cited: Shaw v. Etheridge, 52 N.C. 227; Haywood v. Edwards, 61 N.C. 351.
(55)