McTavish v. Carroll

Le Grand, C. Jm delivered the opinion of this court. This case is before this court for the third time. Tins former decisions in regard to it may be found in 7 Md. Rep., ⁶ 352, and in 13 Md. Rep., 429 . Et is an action on the caso for obstructing a road running from the mill of the appellee to his mill-dam, which dam, and the portions of the road obstructed, are on the land of the appellant.

The particular damage alleged in the declaration, as resulting to the plaintiff from the obstruction placed in the bod and across the road, is thus described: “Whereby the said mill became, and was, during all the time aforesaid, idle and incapable of being worked, by reason of the said race and its banks being broken down and out of repair, so that the water could not flow through it from the same dam to the said mill, wherefore the plaintiff'lost all benefit and profit, which otherwise he would have had and made from the working of the said mill, and the custom and trade thereof, and the use of the same for grinding his own grain, and was, therefore, at great expense, obliged to carry it to other mills, that is to say, at the county aforesaid, whereby the said plaintiff saith he hath damage,” &c. In the report of the first decision of this court in this case, the kind, extent and nature of the easement to which the plaintiff is entitled over the land of the defendant, are distinctly laid down. And, in the second decision, the kind of evidence on the question of special damage which is admissible, is pointed out. Damages are claimed, because of the alleged obstructions, from the 27th day of August 1852.

After giving evidence of the titles under which the parties respectively claimed, the plaintiff offered to prove that the plaintiff was the owner of a large body of land around said mill, and that he was accustomed to grind his grain raised on said land at said mill for his cattle and horses as well as for the use of his hands and family, and that in consequence of the stoppage of said mill he had been compelled to carry his grain to another mill, at a greater distance. The defendant objected to the admissibility of this evidence, but the court overruled the objection and the defendant excepted. We think the court properly overruled the objection to the admissibility of the testimony. It clearly related to the dam ⁷ nge alleged.

Had the declaration in the case under consideration, been the same as that in the one reported in 13 Maryland, under the decision in that case it would have been inadmissible; but it is not, but broader and much more comprehensive in its specification of damage. The circuit court must also be sustained on the second ex ception. The deposition of the witness Cecil, not being in the record, this court cannot be informed of its contents, and