By the Court
Berry, J.
Plaintiff brings this action to recover damages for the overflowing of his land by reason of a dam, which, as he claims, defendant has erected and maintains at a greater height than he has a right to do. Plaintiff also prays for an injunction and abatement.
I. Upon the trial defendant asked one Tuttle, a witness called by him, and who stated that he was employed by defendant to build, and had charge of the construction of the dam, the following question: “At the time of building the present dam, what instructions did you have from the defendant as to the height to which the new dam should be built?” The defendant contends that this question was improperly rejected. He argues that this is an action for an injury to real estate in which exemplary damages may be awarded if it appears that he has wilfully committed the wrong charged, and that it was therefore proper for him to give Uc instructions in evidence as part of the res gestae for the purpose of showing that he did not wilfully erect the [361]*361dam at a greater height than he should have .done; in other words, for the purpose of showing that he acted with good motives and intentions.
There is no suggestion appearing in the case as to what, answer was expected to be given to the question asked, but assuming that it would have been favorable to the defendant, we think the question was properly excluded. To make the instructions inquired for admissible as part of the res gestas, it would be necessary that they should be so connected -with the “ main fact,” which was in this instance the building of the dam of the height at which it was built, as to illustrate its character. 1 Gr. Ev. § 108; Lund vs. Inhab. Tynssborough, 9 Cushing 36.
Certainly it will not be contended that the instructions or declarations, as they may be regarded, inquired for in this instance, could have any tendency to illustrate the character of the dam, as of one height, or another, nor could they tend to make more clear, or give any peculiar si gnificance to the “ main fact.” See Nutting vs. Page, 4 Gray 584.
They could not go to illustrate or give significance to the “ main fact,” as do those declarations which are received as part of the res gestee on the ground that they are expressive on the character, motive or object of a main fact, and as verbal acts indicating a present purpose or intention, for these are cases where such character, motive or object determines the essential nature of the main fact itself. 1 Gr. Ev. § 108, cmd eases supra. "
The instructions wero therefore properly rejected under the general rule excluding hearsay.
There is still another good reason given by the plaintiff why there was no error in rejecting the question under consideration, and that„.is that it does not appear by the case [362]*362that any attempt was made by the plaintiff to show, nor was it claimed that the defendant’s acts complained of were wilfully committed, and under this state of the evidence, there was no occasion for the defendant to exculpate himself from that with which he was not charged.
II. The defendant requested the court to instruct the jury that, “the attempt to measure the actual height or fall of the stream by a process of instrumental levelings, is less satisfactory than, and must yield to actual, visible facts, because instrumental measurements are liable to accidents and mistakes.” We think this instruction was properly refused.
Assuming that the instruction refers to such actual and visible facts only as have some tendency to throw light upon the subject of inquiry, it could hardly be contended that all instrumental levelings, no matter how skillfully made, or carefully verified, are less satisfactory than, and must yield to all kinds of such actual and visible facts, no matter how remote their reference to the matter in issue, nor how doubtful their proper application, or the inference to be drawn from them. Even as applied to that part of the testimony reported in the case stated, we think the instruction was too broad, and was calculated to mislead the jury; and as the evidence is not all reported, we cannot say what effect it mi ght have had as applying to all the testimony adduced upon the trial.
III. There was no error in refusing to charge that defendant was “ not liable for any extraordinary accumulations of water occasioned by natural causes, although incidentally affected by the dam,” since, so far as the case shows, there was no evidence offered to which the instruction requested could have any application.
[363]*363IY. We do not think that the first four instructions given at plaintiff’s request are obnoxious to the objection urged against them by the defendant.
We understand this objection to be that the instructions in effect inform the jury that the limitation law found in sec. 17, page 241, Gen. Stat. does not bar the plaintiff’s right of action for damages although the dam complained of was erected more than two years before plaintiff’s suit was commenced. We do not think this is the meaning of the instructions.
When fairly construed they have no reference to the statute referred to, but their manifest purpose was to inform the jury, irrespective of any question arising .upon the limitation law, that the plaintiff would not lose his right of action because he did not watch the defendant, or caution him, or complain of him, or bring suit against him, &c., &c.
Y. This is an action in which the plaintiff seeks to recover damages for a nuisance, and an abatement of such nuisance, together with a perpetual injunction against its maintenance or continuance; to all which he is upon a proper showing entitled by sec. 25, ch. 75, Gen. Stat. under which this action is manifestly brought.
The action is not purely legal, nor purely equitable, but is of a mixed nature, since it is one in which both legal and equitable relief are sought.
In accordance with the provisions of sections 198 and 199, eh. 66, Gen. Stat. the issues of fact in this case were triable by the court, “ subject to the right of the parties to consent, or of the court to order that the whole issue, or any specific question of fact involved therein, be tried by a jury, or referred.”
In this case there seems to have been no formal consent [364]*364of parties to a trial by jury, nor any formal order of the court settling the issues in the case and submitting the same to a jury in accordance with Berkey v. Judd, 14 Minn. 394; but, as the record states, “ the action was tried by a jury, and no objection made by either party,” and at the close of the charge, the jury was instructed by the court to return a general verdict on the question of damag'es. The jury returned a general verdict for plaintiff, assessing his damages at fifty dollars. Although this mode of proceeding was not strictly regular, we think there was a substantial consent of the parties to the trial by jury of the issue as to the existence of the nuisance, and qucmtum of damages.
To this general verdict then we see no objection. It is a sufficient foundation for a money judgment. This case is to be distinguished from Guernsey vs. American Ins. Co.
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By the Court
Berry, J.
Plaintiff brings this action to recover damages for the overflowing of his land by reason of a dam, which, as he claims, defendant has erected and maintains at a greater height than he has a right to do. Plaintiff also prays for an injunction and abatement.
I. Upon the trial defendant asked one Tuttle, a witness called by him, and who stated that he was employed by defendant to build, and had charge of the construction of the dam, the following question: “At the time of building the present dam, what instructions did you have from the defendant as to the height to which the new dam should be built?” The defendant contends that this question was improperly rejected. He argues that this is an action for an injury to real estate in which exemplary damages may be awarded if it appears that he has wilfully committed the wrong charged, and that it was therefore proper for him to give Uc instructions in evidence as part of the res gestae for the purpose of showing that he did not wilfully erect the [361]*361dam at a greater height than he should have .done; in other words, for the purpose of showing that he acted with good motives and intentions.
There is no suggestion appearing in the case as to what, answer was expected to be given to the question asked, but assuming that it would have been favorable to the defendant, we think the question was properly excluded. To make the instructions inquired for admissible as part of the res gestas, it would be necessary that they should be so connected -with the “ main fact,” which was in this instance the building of the dam of the height at which it was built, as to illustrate its character. 1 Gr. Ev. § 108; Lund vs. Inhab. Tynssborough, 9 Cushing 36.
Certainly it will not be contended that the instructions or declarations, as they may be regarded, inquired for in this instance, could have any tendency to illustrate the character of the dam, as of one height, or another, nor could they tend to make more clear, or give any peculiar si gnificance to the “ main fact.” See Nutting vs. Page, 4 Gray 584.
They could not go to illustrate or give significance to the “ main fact,” as do those declarations which are received as part of the res gestee on the ground that they are expressive on the character, motive or object of a main fact, and as verbal acts indicating a present purpose or intention, for these are cases where such character, motive or object determines the essential nature of the main fact itself. 1 Gr. Ev. § 108, cmd eases supra. "
The instructions wero therefore properly rejected under the general rule excluding hearsay.
There is still another good reason given by the plaintiff why there was no error in rejecting the question under consideration, and that„.is that it does not appear by the case [362]*362that any attempt was made by the plaintiff to show, nor was it claimed that the defendant’s acts complained of were wilfully committed, and under this state of the evidence, there was no occasion for the defendant to exculpate himself from that with which he was not charged.
II. The defendant requested the court to instruct the jury that, “the attempt to measure the actual height or fall of the stream by a process of instrumental levelings, is less satisfactory than, and must yield to actual, visible facts, because instrumental measurements are liable to accidents and mistakes.” We think this instruction was properly refused.
Assuming that the instruction refers to such actual and visible facts only as have some tendency to throw light upon the subject of inquiry, it could hardly be contended that all instrumental levelings, no matter how skillfully made, or carefully verified, are less satisfactory than, and must yield to all kinds of such actual and visible facts, no matter how remote their reference to the matter in issue, nor how doubtful their proper application, or the inference to be drawn from them. Even as applied to that part of the testimony reported in the case stated, we think the instruction was too broad, and was calculated to mislead the jury; and as the evidence is not all reported, we cannot say what effect it mi ght have had as applying to all the testimony adduced upon the trial.
III. There was no error in refusing to charge that defendant was “ not liable for any extraordinary accumulations of water occasioned by natural causes, although incidentally affected by the dam,” since, so far as the case shows, there was no evidence offered to which the instruction requested could have any application.
[363]*363IY. We do not think that the first four instructions given at plaintiff’s request are obnoxious to the objection urged against them by the defendant.
We understand this objection to be that the instructions in effect inform the jury that the limitation law found in sec. 17, page 241, Gen. Stat. does not bar the plaintiff’s right of action for damages although the dam complained of was erected more than two years before plaintiff’s suit was commenced. We do not think this is the meaning of the instructions.
When fairly construed they have no reference to the statute referred to, but their manifest purpose was to inform the jury, irrespective of any question arising .upon the limitation law, that the plaintiff would not lose his right of action because he did not watch the defendant, or caution him, or complain of him, or bring suit against him, &c., &c.
Y. This is an action in which the plaintiff seeks to recover damages for a nuisance, and an abatement of such nuisance, together with a perpetual injunction against its maintenance or continuance; to all which he is upon a proper showing entitled by sec. 25, ch. 75, Gen. Stat. under which this action is manifestly brought.
The action is not purely legal, nor purely equitable, but is of a mixed nature, since it is one in which both legal and equitable relief are sought.
In accordance with the provisions of sections 198 and 199, eh. 66, Gen. Stat. the issues of fact in this case were triable by the court, “ subject to the right of the parties to consent, or of the court to order that the whole issue, or any specific question of fact involved therein, be tried by a jury, or referred.”
In this case there seems to have been no formal consent [364]*364of parties to a trial by jury, nor any formal order of the court settling the issues in the case and submitting the same to a jury in accordance with Berkey v. Judd, 14 Minn. 394; but, as the record states, “ the action was tried by a jury, and no objection made by either party,” and at the close of the charge, the jury was instructed by the court to return a general verdict on the question of damag'es. The jury returned a general verdict for plaintiff, assessing his damages at fifty dollars. Although this mode of proceeding was not strictly regular, we think there was a substantial consent of the parties to the trial by jury of the issue as to the existence of the nuisance, and qucmtum of damages.
To this general verdict then we see no objection. It is a sufficient foundation for a money judgment. This case is to be distinguished from Guernsey vs. American Ins. Co. (decided at this term) in which case there were two causes of action, while in the case at bar there is but one, and to that one the action of the parties in proceeding to a trial by jury must necessarily be referred.
But in addition to the general verdict, the following questions were propounded to the jury by the court, and answered as follows
“ Is the stone dam higher than that of 1859, and if so, how much V’ Answer, “ Yes.”
“ How high has the plaintiff authorized the dam to be raised above the bed-rock V’ Answer. “We find ten feet and three inches.”
The defendant argues that he is entitled to a new trial because tho answer to the first question is defective in not finding upon all the issues thereby submitted. It is a sufficient answer to this claim to say that there is nothing whatever in the return in this case to show for what purpose, or [365]*365in what view, the first question was material, or, in other words, of what importance it was to ascertain the height of the dam complained of as compared with the height of the dam of 1859, so that, so far as appears, the question was wholly immaterial.
It follows, that so far as we have any means of ascertaining, a failure to answer the question in whole, or in part, could prejudice no substantial right of the defendant, nor furnish any ground for a new trial.
But aside from this answer to defendant’s objection, it is to be observed that these questions were asked under sec. 218, oh. 66, Gen. Stat. which provides that in all cases the court may instruct the jury “ if they render a general verdict, to find upon particular questions of fact, to be stated in writing, and may direct a written finding thereon.”
In actions of this kind seo. 25, oh. 75, Gen. Stat. enacts, that “by the judgment the nuisance may be enjoined, or abated, as well as damages recovered.”
The abatement and injunction, then, cto not follow the recovery of damages as a matter of course, but their allowance rests in the sound discretion of the court.
It is then for the eowrt to determine whether upon the facts appearing the abatement and injunction should be allowed.
To aid the court in determining this question, was, as we conceive, the only proper object of both questions
Admitting then that the first question was material for the purpose, the failure to answer it fully, was something of which the court might,, if it saw fit, complain, but it could not be the subject of exception by the defendant under the circumstances of the case.
We do not think,'however, that the findings of the jury in this case are alone sufficient to authorize an abatement or [366]*366injunction; for it is undisputed that the defendant has the right to maintain the dam at some height, and, as the jury have found, at the height of ten feet and three inches above the bed-rock; so that if he maintains it at a greater height than he has a right to do, and thereby unlawfully overflows plaintiff’s land, plaintiff cannot demand that the dam shall be wholly removed, but that only so much of it shall be removed, as is necessary to put a stop to the unlawful flowage.
We think, then, that in order to lay a proper foundation for judgment of abatement, or injunction, there should be a specific finding as to how much of defendant’s dam must be abated and enjoined, in order to relieve plaintiff’s land from unlawful flowage.
As no question of this kind was, so far as the record shows, submitted to the jury, it must be determined by the court
It follows that it would not be proper to award an abatement, or injunction, upon the general verdict or special findings of the jury in this case.
But no judgment has been entered in this action, and the present appeal is from an order refusing to set aside the verdict and grant a new trial. There is no reason to suppose that the court below will upon the verdict and special findings render judgment for anything more than the damages. Indeed the presumption is, that as that would not be proper, it will not be done.
So far, then, the defendant has no reason to complain of the verdicts, or of any judgment which has been, or is likely to be entered upon them, and his motion to vacate and for a new trial, so far as it was based upon objections to the verdict, was well denied.
[367]*367VI. Lastly, the defendant claims that he is entitled to a new trial on account of the newly discovered evidence shown by the affidavit of William son.
The counter affidavits offered by the plaintiff were properly received.
The application, which is addressed to the sound discretion of the court, is based upon the ground that there has not been a fair trial upon the real merits, and for this reason it is proposed to compel a party, who has once litigated the matter in controversy, to litigate it a second time.
Why should not such party be permitted to produce counter affidavits for the purpose of showing that the alleged ground for a new trial has no existence 1
We think no good reason can be given why he should be concluded by the ex parte affidavits of the moving party, nor do we understand such to be the practice. Mead vs. Constans, 5 Minn. 171; Eddy et als. vs. Caldwell, 7 Minn. 225; Parker vs. Hardy, 24 Pick. 246; 3 Graham & W. on New Trials, 1069; Williams vs. Baldwin, 18 Johns. 489. The important statements in the affidavit of Williamson were flatly contradicted in the counter affidavits.
Without then considering the question of defendant’s diligence, or the competency or materiality of the alleged newly discovered evidence, we see no warrant for saying that the court below, upon comparing the affidavits and counter affidavits with reference to the question whether a new trial would be likely to produce any different result from the first trial, erred in refusing the application, so far as based upon the ground under consideration.
Order affirmed.