Brooke v. Winters

Stewart, J., delivered the opinion of the Court. The plaintiff in the third count of his declaration, alleges that he is entitled to the free and undisturbed flow of the water of the stream into his mill and dam ; and that the defendants had deposited large quantities of earth, mud and iron ore in the stream and dam, and greatly filled up and obstructed the same, to the injury of his dam and mill, for which he claims damages in this suit. At the trial the plaintiff to maintain the issues on his part, offered evidence to prove that the defendants have been engaged in mining and washing iron ore since the fall of 1868, about seven-eighths of a mile from his mill-dam, and had filled up the same with mud to such extent as seriously to affect his water-power — that for a period of seventeen years, prior to the washing of the said ore, the mud did not accumulate in the dam over four or five inches — that from the time when the defendants commenced washing ore, to the institution of the suit, some eighteen months, the mud had accumulated in the dam, from twenty to twenty-four inches, and had destroyed two feet of his head of water over a part of the dam, and thus greatly deprived him of the use of water for working his mill — there was also evidence that the mill-dam had not been cleaned out at any time. ⁵⁰⁸ These facts were pertinent and material to the issue, and might enable the plaintiff to recover, not merely nominal damages, for the alleged injury, but adequate compensation for the wrong. The defendants for the purpose of counteracting or modifying the force of this proof, and to show there was not such accumulation of mud, and diminution of the quantity of water and obstruction of the plaiutiff in the use of his mill and dam, as alleged; and that he was not injured to the extent claimed, offered to prove “that shortly after the bringing of the suit, the plaintiff took down his mill and built on the same site a new mill, much larger than the old one, and requiring a much greater capacity of water, and that the plaintiff has always had an abundance of water for the working of his said mill.” This evidence was objected to by the plaintiff, and the Court refused to allow it to go to the jury, and this is the ground of the defendants’ second exception, and presents the only question for our review.

No point in the appellants’ brief having been made, as to the defendants’ first exception, we have considered it as waived. Whilst the plaintiff’s right to recover was confined in this action to any' damage sustained before the institution of the suit, and any evidence offered by him, must be relevant to such damage; and the like relevancy was required as to any evidence, offered by the defendants ; there is no rule that excludes proof on