Amoskeag Manufacturing Co. v. Head

A verdict is not set aside on the ground that the prevailing' party was allowed to open and close, unless it appears that injustice was done, A question of law, decided at the law term, is not reconsidered in the same case, except on a motion for a rehearing; and such a motion is not: seasonably made after a trial of the facts subsequent to the decision. On the question of the value of a tract of land, evidence of sums paid for damage done by flowing other tracts of land may be excluded, on the ground that, as a matter of fact, its bearing would be so slight or' remote that it would be unjust or unreasonable to prolong and complicate the trial by the collateral investigation. When, on the question of the value of a tract of land, a party offers the testimony of a witness as to the price paid by the witness for another, tract, the witness may be required to produce his deed. But it is not error of law to allow him to testify to the price without the deed.

Petition, by tbe plaintiffs, for tbe assessment of tbe defendant’s' land damages, under tbe flowage law, e. 20, Laws of 1868. Report-', ed in 56 N. H. 886. Tbe defendant filed tbe following paper: — Tbe said Samuel Head protesting tbat tbe statutes or acts of tbe legislature under wbicb tbe said company claim a.n assessment of damages, upon tbe payment of wbicb or under thereof they shall obtain a right follow bis land and appropriate bis property to their use, is in violation of s. 1 of Art. XIV of tbe amendments to tbe constitution of tbe United States, wbicb provides tbat no state shall deprive any' person of property without due process of law, nor deny to any person within its jurisdiction tbe equal protection of tbe laws, inasmuch as tbe use to Avliicb the said Head’s property is thus to be appropriated is a private use, and not a public use, and protesting tbat it is not competent for the jury to pass upon tbe question whether’ the construction of tbe mills and canals of said company, and tbe erection of their said dam, with said flash-boards forming a part of tbe same, as constructed by said corporation, and tbe flowing of bis land thereby to tbe depth and extent tbat tbe same may or can be flowed or otherwise injured by said dam and flash-boards, is or may be of public use or benefit to tbe people of this state,1 or that tbe same is necessary fay tbe use of tbe mills for wbicb it is designed, nevertheless expressly admits tbat if it is competent for tbe jury to pass upon said questions upon any evidence tbat can lawfully be submitted to them against bis protest, said evidence is to be deemed to have been already submitted against bis fouxrd in accordance with all tbe all matters relating to tbe same, protest, and tbe jury to have allegations of tbe petition in except as to the fact of flowage, and injury and the amount of damages. His land described in said petition, and other land of his, adjoining the same on the south side of the highway mentioned in said petition, are and will be greatly damaged, flowed, and injured by said dam and flash-boards, and all to the damage of the .said Head as he says the sum of fifteen thousand dollars. Sautter Head, By his attorneys, C. R. Morrison and W. & G. A. Lttire. The defendant’s motion for the opening and close was denied, subject to exception. The plaintiffs gave evidence, subject to the defendant's exception, of the character and extent of their works, the number of persons employed by them, and generally of the facts stated in the petition. The court having intimated the opinion athat the raising of the dam was of public use, within the meaning of the statute, both parties gave evidence as to the damage done the defendant thereby. The defendant again moved for the close; also that the petition be dismissed because the evidence showed only a private use. Both motions were denied, subject to exception. The question of damages was the only question submitted to the jury. In 18(11 the defendant conveyed to the plaintiffs the right to flow his land as high as it would be flowed by the erection of the plaintiffs’ new stone dam, which was finished in September, 1871. In 1875 the plaintiffs placed on the new dam flash-boards two feet in height; and it is for the determination of the damage done thereby that this proceeding is instituted. The defendant put in evidence the deposition of E. A. Straw, taken May 22, 1878, who was general agent of the company from 1852, and had been before that in their service as civil engineer from 1887. In the deposition were the following questions and answers: Int. 5. “ Please state whether flash-boards were put upon this last dam by the company and maintained there, and if so what height.” Ans. “ I think the company purchased the right of several owners, can’t say how many, to maintain flash-boards to a certain height on top of this last dam, about two feet — can’t say whether there are any inches or not. We have maintained them on the dam since the purchase of this right.” Int. 6. “In the Manchester Daily Union of Feb. 2, 1875, are lists of person of whom such purchase was made and of the sums paid, which are as follows: Sum paid. 1. J. E. Stearns, $6,900.00 .2. J. M. Webber, 112.50 3. Mrs. S. S. Webber, 337.50 Sum paid. 4. F. C. Stearns, $225.00 5. H. Fogg, 112.50 6. Harris J. Poor, 2,100.00 7. Enoch N. Ely, $3,791.00 8. James P. Ely, 3,900.00 9. John Harvey, 2,400.00 10. Stephen C. Eastman, 337.50 11. Harrison Mitchell, 300.00 12. David A. Kimball, 1,125.00 13. Wm. K,. Eastman, ' 630.00 14. Abraham Mitchell, 738.75 15. Geo. W. Davis, 300.00 16. Wm. H. Putnam, 682.00 17. Nancy Shirley, 510.00 18. John Shirley, 5,287.50 19. Betsey Goodrich, 150.00 20. Nath’l Mitchell, $2,058.75 21. Peter Kimball, 1,064.50 22. John Prince, 528.50 23. Nehemiah Preston, 975.00 24. Heirs of J.E. Kimball, 702.50 25. John G. Garland, 360.00 26. Sarah P. Martin, 700.00 27. Alpheus A. Wells, 150.00 28. Alfred T. Martin, 1,045.00 29. J. Thompson, 5,871.75 30. Sylvester B. Chandler, 262.50 31. Joseph T. Goss, 1,336.50 32. J. W. Prescott, 1,137.50 Please state whether the foregoing sums were paid by the company to the persons named for such purchase.” Ans. “ The persons and sums named are substantially correct. Each case was settled by a separate board of reference agreed upon by the parties, and each case examined and the parties heard upon it as they desired to be, and so far as I know decided and settled upon the report they made, and upon payment of the sums named conveyances were made by deed to the Amoskeag Mfg. Co.” Subject to the defendant’s exception, the last question and answer were excluded. In 1856 Daniel Farmer conveyed to the plaintiffs the right to maintain the water to the height of the new stone dam. He died, and his daughter Elizabeth inherited a part of the land. The defendant offered in evidence a deed conveying the right to flow the inherited land as the water was raised by the flash-boards, and a relinquishment of certain claims for unliquidated damages for the consideration of $4,800, which the court excluded, subject to the defendant’s exception. Subject to the defendant’s exception, Gault, a witness for the plaintiff, was allowed to testify what he recently paid for a piece of land bounded by the river, located near the defendant’s, without producing his deed.