Newton v. Ailis

By the Court, Paine, J.

This suit was brought under the “mill dam law,” to recover compensation for flowing the plaintiff’s lands. The deiendant brought into court and tendered $250.00 as damages already accrued, and offered to pay $50.00 as an annual compensation thereafter, as he was allowed to do by section 37, chap. 56, R. S.

The plaintiff did not accept of these sums, but proceeded to trial. The verdict fixed the damages for the three years preceding the 21st day of August, 1860, at $200 ; the annual compensation for damages to accrue thereafter at #50; and the gross amount of damages for the perpetual use of the dam at $500.

Upon this verdict a judgment was rendered for the plaintiff, that he recover the said $200 past damages, the said $50 as annual compensation, and the said $500 as gross damages. As a matter of form, the judgment should have been in the alternative, respecting the two last items, as the plaintiff was not entitled to both of them, but only to one or the other as he might elect under section 18. But this would be corrrect-ed by the court below, on motion, if such correction is necessary, or perhaps the judgment as it now is, should be construed as subject to the election of the plaintiff to accept the one sum or the other. But it is very certain that the plaintiff cannot complain of it in this respect, even if construed literally. The defendant had judgment for costs, upon the ground that the verdict had not increased the damages beyond the amounts *200 lie liad tendered and offered to pay. Upon this judgment the plaintiff has sued out a writ of error. |

One ground of error relied on is, that the verdict does not aSsess the damages from the time of commencing the suit down to the time of trial, but only for the three years preceding the commencement of the suit. This was a defect in point of form, as section 15 requires the damages to be assessed down to the time of rendering the verdict. But it seems to be more a defect of form than of substance, for the verdict having assessed the damages for the three years previous to the 21st day of August, 1860, that being the day when the suit was commenced, proceeded to assess the annual compensation after that time at fifty dollars. The record does not show when the trial took place, but it would not be going far to say, that the verdict did sufficiently show what the jury thought to be proper damages, for the time between the commencement of the suit and the rendering of the verdict. For that is certain which is capable of being rendered certain; and the verdict having fixed the annual damage, the amount for the time between commencing the suit and its rendition, could from that, be very readily ascertained.

But, even if this were not so, it would be no ground of reversal. For although a party may sometimes reverse a judgment in his own favor, when it does not give him all that he is entitled to, yet it must appear that he was deprived of his full right by some error of the court, and not by his own neglect. And where a verdict, as in this case, gives a plaintiff damages for only & portion of the time for which he is entitled, and this is not in consequence of any erroneous instruction by the court, but of a mere omission, his remedy is not to enter a judgment on such verdict, and then reverse it on error, but to move, either for a new trial, or that the jury be directed to amend and complete their verdict. And if he goes on and enters judgment in his own favor for such sum as the verdict does find, he is not in a position to reverse it because the rest *201 was not-included. A judgment in a party’s favor is presumed to be entered at bis request, and be should not be allowed to reverse it unless it was in fact, a denial of bis right to something further to which he was entitled. And this is not the case where the attention of the court was not called to the matter at all, but the defect arose from a mere oversight.

Nor was there any error in allowing the defendant costs. The amount of past damages found by the verdict did not equal the sum paid into court as such damages, and the amount found as annual compensation did not exceed the amount offered for that. The defendant was therefore entitled to costs after tender, by virtue of sec. 89, ch. 56, R.S., unless it is to be assumed that by reason of the defect in the verdict already alluded to, it remained uncertain whether the amount of past damages, if assessed down to the rendition of the verdict would not have exceeded the amount paid in. But if correct in what we have already said, it appears that no such uncertainty existed. For although the record does not show, when the verdict was rendered, yet the judgment was entered at the February term, 1861, and the suit was commenced in August, 1860. Now we have already intimated, that the verdict does find what the jury considered the proper annual damages after the time to which the damages were assessed by the verdict, and that this might be regarded as a substantial finding of the proper amount for any given portion of a year. But even if the $50, annual compensation, should be held inapplicable to that part of the time between the commencement of the suit and the verdict; and the ratio by which the damages were assessed before commencing suit, which was a little higher, should be applied to it, the result is the same. That ratio allowed an annual damage of sixty-six and two-thirds dollars for the three years preceding the suit. But the time between the commencement of the suit and the rendition of the verdict, could not have exceeded half of a year, and the amount tendered exceeded the amount found by fifty dollars. The verdict, therefore, shows *202 positively tbat the damages down to its rendition would have been less than the amount paid into the court. The defendant therefore, was entitled to costs.

And it was not nécessary that the court should submit it as a question of fact to the jury, whether the money had been paid into court or not. The statute authorizing the tender 'so be made in that way, the court will inform itself whether it has been paid in, without asking the aid of a jury.

The j udgment is affirmed, with costs.