Bassett v. Johnson

The Chancellor

When this cause was brought to a boa ring, a former chancellor, in the exercise of a very proper and reasonable discretion, directed an issue at law to ascertain *160 an important fact. The complainants are owners of meadow lands adjoining Salem creek, a navigable stream in the county of Salem, which they allege are injured by a dam in the process of erection on that creek by the defendants. The object of the bill is to enjoin the further bnilding of the dam, and to abate it as a private nuisance. - The great question in the cause was, whether the dam did in fact injure the meadows so as to justify the interference of the court. There was á diversity of opinion on this subject, as the evidence disclosed. Among the witnesses, men entitled to the confidence of the court took different sides and entertained widely different views. The chancellor, Under these circumstances, (although it is plainly to be inferred from What he says that the weight of evidence inclined, in his opinion, in favor of the complainants,) directed an issue to ascertain and determine, by the verdict of a jury, whether the erection of the aforesaid dam “ had seriously and permanently affected and injured the meadows of the complainants lying above it.” This issue, it appears by the postea returned, was tried before his honor justice White, one of the associate justices of the supreme court, at a circuit court in the county of Salem, and a verdict rendered in favor of the complainants, affirming their allegations respecting the dam, in the words of the issue. This trial having taken place in the very county in which the lands are situated, where the witnesses are all known and their means of judging fully before the jury, should not be slightly disturbed, and especially as the judge himself has certified that the verdict is entirely satisfactory to him. The object- of this issue is to inform the conscience of the court; and if I can be satisfied that substantial justice has taken place, I should not be willing, on mere technical grounds, to disturb the verdict. The defendants, however, ask to have a new trial; and it is due to them to look into their reasons separately, and see whether any are sufficient to call for another investigation. The rule of a court of equity, in granting new trials on feigned issues, will be found fully considered in the case of Van Alst v. Hunter, 5 Johns. Ch. Rep. 148 .

*161 The first reason assigned is, that the judge who tried the issue has not made a report of the trial; or rather, as I suppose, that such report is not as full as it should have been. He has made a report. That the judge, beyond returning the postea, should go farther, and furnish a fair statement of the trial to this court, is abundantly proper, and required by the practice in such cases. In fact, his certificate has always its weight. But what that report must contain, is another question. The objection stated is, that the report is not full enough; that it should state the evi deuce and give a minute history of the trial. I cannot think there is any necessity for imposing this duty on the judge. Why should he state the whole evidence ? That was to be settled by the jury. The very object of the issue was, to confide the facte to their determination. This court would not, after taking (his step, undertake to settle the facts embraced by the issue. The judge has stated the general character of the evidence offered, the part objected to, and the decision made upon those objections, with his charge to the jury. This was clearly all that could be required from him. But if any difficulty existed on this subject I should not for this cause grant a new trial, but should call on the judge for an additional report of the case.

The second objection is, that the judge overruled competent evidence. The defendants offered to prove, that if the dam wau completed the injury complained of would be remedied. This the judge overruled. At first view there appeared to be something in the objection ; but upon further reflection, I am perfectly satisfied the decision was right. What was the issue 1 Not what might be the result upon any supposable slate of things, hut whether in fact the dam in its then condition had caused the injury. To allow evidence founded upon mere speculation as to what might or might not be the result on any other than the case as it then stood, would be to open a wide range of investigation, and could in no way determine the precise issue before the court. It was said on the argument that the issue was not made broad enough; it should have called lor an inquiry how far the injury was “ irreparable,” as well as “ permanent.” But. *162 that is a matter which we- cannot inquire into now. The issue has been made and acted upon,, and the1 only point to settle here is, whether the evidence was proper within the issue as framed. It is quite certain the chancellor never intended' the issue to embrace this matter; for in his opinion he says, “ whether the dam, if completed, will or will not permanently and materially affect the rights and property of the complainants, is rather matter of opinion than of fact. It is a consequence, and not a matter in praesenti'

The'third objection, is to the charge of the judge. The leading object of the charge, which I have carefully examined, is t& draw the attention-of the jury to the issue before them and the-matters necessary for them to determine. After stating the issue,, he explains the meaning of the words affected or injured, and of the words serious injury and permanent. Nothing could be more proper, nor do I see any thing to complain of in the plain meaning conveyed by this charge. The explanation given by the judge to-the word “permanent,” was most criticised on the-argument; but it is surely correct to say that an injury may be permanent, in the sense of the word used in the issue, without-continuing for ever. This was all that was intended to be explained. The injury to be permanent, it is repeatedly stated,, must be something more than a mere temporary inconvenience; it must be-lasting. Many cases are put, showing a permanent injury, though not continuing for ever,- as the common one of cutting down an orchard, although a new one might be planted which might in process of time be even better than the one cut down; I can see nothing in this charge likely to draw the jury from> the true question before them, but by its tenor aDd fair construction it was calculated to confine their minds to the very point it was intended they should settle.

The fourth objection is, that the jury was struck before the-justice who tried the cause. It is a sufficient answer to this objection, that the defendants, by striking the jury and proceeding to trial without objection, have waived their right now to complain. After going to trial without intimating any difficulty on *163 this subject, if, would be against all rule now to allow them to avail themselves of such an objection.

The last objection is, that the deposition of Benjamin Gris-cum, taken in 1821, was not received as evidence. That deposition could have no bearing on the issue, and was properly rejected.

J see notiiing in any of the reasons assigned which will, in my judgment, justify me in ordering any further trial of this issue. The case seems to have been fairly settled after a very tedious investigation, and should put an end to the case as far as the issue is concerned, and especially so as the judge who tried the cause is satisfied with it. The motion for a new trial must therefore be denied.

Motion denied, with costs.