George v. Fisk & Norcross

Where the defendants put a large quantity of logs upon the ice of a river, and on the breaking up of the ice a dam was formed by the logs and ice, and a channel cut through the plaintiff’s land, and logs were carried upon the land, and it appeared that the defendants used no care in regard to the logs after they were put upon the ice — held, that the evidence was competent to show negligence, and that an action could be maintained for the damage. A tenant and landlord may both maintain actions at the same time for injuries done to an estate: the tenant, for the interruption of his possession and the diminution of his profits ; and the landlord, for the more permanent injury to his property. In a suit by a landlord, not in possession, for damages done to his estate, the declaration should give a correct description of his title, and the injury received, and his interest in the property should he stated according to the facts. Where the plaintiff was in possession of land, under a bond, conditioned that if he supported certain persons during life he should receive a deed of the premises, and it appeared that he had so far kept the condition — held, that he had an interest in the land to the extent of a freehold, and that, under a declaration alleging that he was seized of the premises, he could recover for injuries done to his possession. Where a deposition was taken by one party on notice, and both parties examined the witness at the caption, but the deposition had not been used upon trial, and the witness died — held, that the adverse party was not entitled to use the deposition against the will of the party taking it.

Case, brought to recover damages of the defendants as partners, under the firm of Fisk & Norcross, for causing the obstruction of the Pemigewasset river, by means of logs placed therein, whereby the plaintiff’s land was flowed and injured. The declaration contained four counts, the first of which was as follows: “ In a plea of the case for that the plaintiff, on the first day of February, A. D. 1850, at Woodstock aforesaid, was, and ever since has been, seized of a tract of land in said Woodstock, and bounded on the north by land of Charles Fifi eld, east by land of David Woodbury, south by land of David Woodbury, Jr., and west by Pemigewasset river, containing fifty acres, more or less. And the defendants, not ignorant thereof, then and there did wrongfully cause to he placed in said river, above said tract of land, large quantities of logs, timber and trees, to wit, ten thousand logs, trees and lumber, containing one million feet, and did wrongfully and negligently permit the same to accumulate, obstruct and dam up said river below and near the plaintiff’s said land, and opposite to the same, and did neglect properly to direct, drive and float said logs, trees and lumber, so as to keep them clear of said land, whereby said river became, and was, in consequence of defendant’s said negligence, greatly dammed up; and the plaintiff’s said land was overflowed and drowned thereby, and said logs were thus negligently and wrongfully permitted by defendants to float upon said land, and the same then and there, by the force and pressure of said stream, and by the logs, trees and timber aforesaid, did wash away and gully out and subvert the soil, and injure and destroy the plaintiff’s grass, then and there growing, and did otherwise greatly damage said land, and lessen it in value.” The other counts were substantially the same as the first, alleging the injuries to have been caused in February, 1851, 1852 and 1858. The defendants pleaded the general issue, and the plaintiff offered evidence tending to show that in February, 1850, in consequence of a freshet, the river broke up, the ice being from one to two feet in thickness, and a dam was formed across the river a short distance below the plaintiff’s land, by logs, ice and snow intermixed, by reason of which the plaintiff’s land was overflowed, and the current of the river directed across it, in which passed other logs, ice and snow, whereby a channel from two to four feet deep was made in the soil of the plaintiff’s land, and logs and ice floated and lodged in various places upon his meadow. It appeared that the plaintiff was in possession, and that the logs belonged to the defendants, who were engaged in the lumbering business upon said river ; and there was evidence tending to prove that there was in all three hundred thousand feet of timber that came down the river at this time with the ice, and was stopped in the river, and was lodged on the lands adjoining, as above stated. It appeared also that neither the defendants, or any of their servants or agents, followed these logs, or were present at the time of the formation of this dam, or did any thing to prevent the same, but there was no other evidence of negligence offered, and the plaintiff rested his cause. The defendants then moved for a nonsuit, on the ground that there was no competent evidence of negligence, or want of due care in the defendants, but the court overruled the motion, to which the defendants excepted, and the trial proceeded. It appeared that the title to the land was in the town of Woodstock, and that on the eighteenth day of April, 1849, a bond was executed by the selectmen of Woodstock, in the name of the town, for which they were authorized by vote of the town, and the same was duly delivered to the plaintiff, and was as follows : “ Know all men by these presents, That the town of Woodstock, in the county of Grafton and State of New-Hampshire, is held and firmly bound to Samuel George, Jr., of Woodstock, in said county of Grafton, in the sum of one thousand dollars, to be paid to the said Samuel George, Jr., or his certain attorney, executors, administrators or assigns, to which payment, well and truly to be made, we, as selectmen, hereby bind said town of Woodstock, firmly by these presents, sealed with our seals, and dated at Woodstock, this eighteenth day of April, in the year eighteen hundred and forty-nine.' The condition of the above obligation is such, that if the said Samuel George, Jr., his heirs or assigns, shall support and maintain Samuel George, Huldah George, wife of the said Samuel, and Sarah George, mother of the said Samuel George, furnishing them with good and sufficient clothing, lodging, victuals, drinks, doctoring and nursing, at the dwelling-house of the said Samuel George, in Woodstock, keeping the said Samuel George, Huldah George and Sarah George, free and clear from all trouble, cost or expense to the said town of Woodstock, during their natural lives, the said Samuel George, Jr. is to have the use and profit of the Samuel George farm, so called, belonging to the said town of Woodstock, so long as he shall so support and maintain the said Samuel, Huldah and Sarah George, being father, mother and grandmother of the said Samuel George, Jr.; the said Samuel George, Jr., to have the privilege of managing and cultivating said farm without waste or detriment, and keeping said farm and buildings in good repair; and if the said Samuel George, Jr. shall perform and fulfill all his part in the conditions, then the town of Woodstock, by their agent, shall and will give said Samuel George, Jr., or his heirs or assigns, a good and sufficient quitclaim deed of the above mentioned farm, then this obligation to be void, otherwise in full force. George F. Wells, [l. s.] Benjamin Fox, [l. s.] William H. Gordon, [l. s.] Selectmen of Woodstock.” “ Signed, sealed and delivered in presence of John Clough, Thomas H. Gordon.” It also appeared that the plaintiff had entered on the land under this bond, and ever since occupied it; that he had maintained the persons named in the condition, ever since up to the present time, except Samuel George, who died in the fall of 1854, but was maintained by the plaintiff until his death, the others being still living and maintained by the plaintiff; and the defendants contended that upon this declaration and on this proof of title, the plaintiff could not maintain his action; but the court charged the jury that he might so maintain his action, to which the defendants excepted. In the course of the trial the defendants offered to read the testimony of Samuel George, now deceased, given in the form of a deposition, taken in this cause by the plaintiff, on notice to defendants and their appearance, which deposition contained the testimony of the deceased witness on the examination of both parties; but the court rejected the evidence, to which the defendants excepted. The court charged the jury, that if the defendants put their logs upon the ice, in the river above the plaintiff’s land, without being rafted or secured, so that on the breaking up of the ice in a thaw, producing a freshet, which was not unusual, they were thrown upon the plaintiff’s land, or contributed to the formation of a dam, by which the current was turned across his land, and the land injured thereby, the defendants were liable. The court proceeded to say: “ If the injury or any part of it was caused by the want of due care of the defendants in managing and controlling their logs, there being in the river, so far are the defendants liable. And the question for you to decide is, whether the defendants did manage their logs in a reasonable and proper manner; whether they exercised due care and diligence in preventing them in times of a freshet from doing injury to others’ land. If you are of opinion that the defendants did not exercise proper care and diligence in the management of their logs, then did these logs form the dam or jam, or essentially contribute and conduce thereto ? If the jam was formed wholly by the ice, and would have happened independently of the logs, and thereby have occasioned the same injury, then the defendants are not liable. But if the jam was formed wholly by the ice, yet if the damage was caused by the logs being thrown on to the plaintiff’s land, by force of this flowage of water so caused, and by the logs ploughing up and subverting the soil, and if you find that the defendants did not exercise due care in managing and driving or securing said logs, then the defendants would be liable to which, also, the defendants excepted. The court also charged the jury, that the plaintiff stood in the situation of a party, having made a contract for the purchase of the land, and paid part of the price ; and that he had virtually a lease of the land, so long as he should support his parents and grand-parent; and if they found for the plaintiff they should give him damages commensurate with the injury which he had sustained in his estate; although for the permanent injury to the soil the town of Woodstock was alone entitled to recover. They also instructed the jury, that the plaintiff might abandon • the premises at any time, and cease the support of said persons, with no other consequences than a loss of the premises. The defendants thereupon requested the court to charge the jury, that if the plaintiff is entitled to recover any thing, it can be only nominal damages. Also requested the court to charge the jury, that under this declaration the plaintiff can recover nothing more than the damages to the grass crop of that year, together with damages for the interruption of passage over the land. But the court declined to charge according to either of said requests. But thereupon the court instructed the jury to find such damages as the plaintiff had suffered, according to the title he had proved; and that the town of Woodstock could, immediately after the accident, have brought their action and recovered the damages of a permanent character, which had happened to the land. To all of which rulings and instructions, and the declining of the court to rule as requested, the defendants excepted. The jury returned a verdict for the plaintiff for $250 damages ; and the defendants moved for • a new trial upon all the foregoing grounds, and because the damages were excessive. Upon the subject of the damages, the evidence tended to prove that the plaintiff’s land, covered with water, that is, chiefly covered, was a tract of about fifteen and one half acres, under cultivation as mowing, lying in Woodstock, and bounded on the west by the Pemigewasset river, and on the east by a creek or moat, which emptied into the river below the plaintiff’s land, and which in high water communicated with the river at the upper end. That the land was low, and covered mostly with water, as often as once a year, the bank of the river at the upper edge of the break being eighteen inches above the water, at an ordinary stage in the month of May. That the'channel washed or gullied through the plaintiff’s land was in length about thirty-three rods, and wide enough to make in all about two and one eighth acres, and gullied to the depth of from two to four feet. That a considerable quantity of logs were left on various parts of the land, besides those left in the channel, which remained untq some time in the month of April, of the same year, when they were removed by the defendants. No evidence was offered as to any injury to the land, except what is above stated, except that the jury had a view of the land, and the agents of both parties drew the attention of the jury to1.the sand, which had been washed upon the land in various places by high water. I. The motion for a nonsuit should have been granted. ' The evidence did not tend to show any fault or negligence on the part of the defendants. Nothing more was shown than that the river broke up in a freshet, in the month of February, 1850, and brought down a large quantity of the defendants’ logs. There was no evidence of negligence in subjecting the logs to the action of the river, or in not conducting them after the river broke up. In the case of the collision of ships at sea, in a storm, negligence might as well be presumed as in this case. After the breaking up of ice of this thickness in a freshet, nothing could have been done to control it. II. The testimony of the deceased witness, Samuel George, ought to have been received. It was taken in the same cause, on the examination of both parties, and upon oath. 1 Greenl., § 163, and cases cited; Young v. Dearborn, 2 Foster 3T2. It is sufficient if it was, or might have been, taken under the examination of both parties. Casneau v. Vaughan, 1 Maulé & S. 4; Cass v. Stinson, 3 Sumner 99, 105. The test seems to be the examination, or the opportunity of an examination, by both parties, and that existed in this case. And it is believed that no case can be found where the testimony is excluded upon the ground that the party against whom it is now offered, having himself introduced the witness at the former trial, had no opportunity to cross-examine him. On the contrary, the ease of Crary v. Sprague, 12 Wend. 41, where the plaintiff offered to introduce the testimony of a deceased witness of defendant, goes upon the opposite ground. See, also, 1 Greenl. Ev., § 322 ; Williams v. Williams, 3 Maulé & S. 497 ; Commonwealth v. Richard, 18 Pick. 434 ; 2 Lilly’s Abr. 745; Jackson v. Lawson, 15 Johns. 543. Nor is it necessary that the testimony should have been given in a court of record, nor at what is technically a previous trial. 2 Cowen & Ph. Evid., note 437, p. 571; 1 Stark. Evid. 269, and eases cited; Jackson v. Bailey, 2 Johns. 18; Rex v. Barbour, 1 Root 76; Commonwealth v. Richards, 18 Pick. 434. III. The instructions as to the damage were wrong, and the jury should have been instructed as requested by defendants’ counsel. As it was left to the jury, they were at liberty to award damages for the injury to crops, &c., forever ; so long as they might suppose his interest would be likely to continue. This was wrong; damages should not have been given for the injury to crops, &c. beyond the year. But they were misled, and must have gone beyond it, as appears from the fact that only 2if acres were gullied out, and the verdict was $250. No legal interest passed by the bond. It is not a lease, and deprived the town of Woodstock of no legal remedies it was entitled to for injuries to the land. Nor should it, for the plaintiff had acquired no title to the land, and was under no obligation to complete the purchase. Had the town of Woodstock brought suit and recovered for permanent injury to the soil, it would have held the amount recovered in trust for the plaintiff, had he elected to complete the purchase. In this way ample justice would have been done ; but on the instructions given the defendants would be charged twice. Both the tenant and the reversioner may sue; one for the injury to his possession, and the other for the destruction of the land, and the recovery by one would be no bar to the other. 1 Chit. PI. 63, and note y; 2 Grreenl. Ev. 469, and cases cited; Jesser v. Gifford, 4 Burr. 2141; Davis v. Jewett, 13 N. H. R. 91; 1 Saunders’ Rep. 322 ; Baker v. Sanderson, 3 Pick. 352; Sumner v. Tileston, 7 Pick. 198 ; Starr v. Jackson, 11 Mass. 519, 521, 522; Yiner’s Abr., Trespass, 2, 3, 4; Comyn’s Dig., Trespass, B, 2. In case of a bond conditioned to convey on payment of the price, and the obligee to have possession in the meantime, it will be regarded as a license, or an estate at will. Hiatt al. v. Miller, 5 C. & P. 595; Proprietors of Ho. 6 v. McFarland, 12 Mass. 324; Hanchett v. Whitney, 2 Aiken 240 ; Taylor’s Landlord & Tenant, § 60 ; 1 Greenl. Cruise Dig., Tit. 9, Ch. 1, § 8 ; Jackson v. Bryant, 1 Johns. 326 ; Jackson v. Rowan, 9 Johns. 330; Glough v. Hosford, 6 N. H. R. 231; Love v. Fdmondstone, 1 Iredell 152; Fowke v. Beck, 1 Spears 291; Jones v. Jones, 2 Richardson 542 ; Jackson v. Hughes, 1 Blackford 421; Doolittle v. Fddy, 7 Barbour 74. IY. The charge of the judge that placing the logs on the river, without being rafted or secured, was negligence which would charge the defendants, is wrong, we think. The other part of the instructions, as to want of due care, applies to the management of the logs after being afloat. Y. The damages were excessive, and could not have been reasonable for injury to the crop. 1. Possession of land without title or color of title, is sufficient evidence of seizin against every one who can show no better title. Land v. Parker, 8 N. H. 49. Seizin is only possession. Frost v. Cloutman ux., 7 N. H. 9. 2. The court were fully sustained by authority in instructing the jury that the plaintiff stood in the situation of a party having made a contract for the purchase, and paid part of the price, and that he had a virtual lease of the land so long as he fulfilled the conditions of the bond. The bond itself shows this. Greenl. Cruise on Real Property, Title, Trust, Ch. 1, § 41. 3. The rule of damages was also correct. It was to be “ commensurate with the injury which he had sustained in his estate.” At the same time a full explanation was given as to the nature of that estate, and the extent of interest held by the town in the land. Under such instructions it was wholly within the province of the jury to say what the damage really was. Dennison v. Hyde, 6 Com. 508 ; Allen v. Craig, 1 Greene 294. In Schuylkill Nav. Co. v. Farr, 4 Serg & "Watts 362, it is laid down that the measure of damages occasioned by backing water on land, is the difference between what the property would have sold for as affected by the injury, and what it would have brought unaffected. Where an injury has been sustained for which the law gives a remedy, that remedy shall be commensurate with the injury. Bockwood v. Allen, 7 Mass. 254; Swift v. Barnes, 16 Pick. 194; Bussy v. Donaldson, 4 Dali. 206; Leland v. Stone, 10 Mass. 459. 4. The copy of S. George’s deposition was properly rejected. We find no case where the doctrine is laid down that a party under such circumstances would be entitled to use it. The rule recognized by the authorities is based upon the right of cross-examination, by the party against whom the deposition is sought to be used. No such right or privilege existed in this case. 1 Greenleaf’s Evidence 589, 590.