Eastman, J.
Taking the order in which the questions in this case are raised, and the first one presented arises upon the ruling of the court in denying the motion for a nonsuit.
The plaintiff had declared that he was seized of a tract of land in Woodstock, and that the defendants, not ignorant thereof, had caused to be placed in the Pemigewasset river, large quantities of logs, timber and trees, and wrongfully and negligently permitted the same to accumulate, obstruct and dam up the river before and near the plaintiff’s land, and opposite to the same, and neglected properly to direct, drive and float the logs and timber so as to keep them clear of the plaintiff’s land, whereby the river became, and was in consequence of the defendant’s negligence, greatly dammed up, and the plaintiff’s land was overflowed and drowned thereby; and the logs were thus negligently and wrongfully permitted by the defendants to float upon the land, and the soil was washed and subverted, and the grass injured and destroyed, and the land was otherwise damaged and lessened in value.
The case then finds the plaintiff’s evidence to be as follows : 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.
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 that there were in all three hundred thousand [43] 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.
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.
Upon this evidence the defendants 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 and the defendants excepted.
The defendants placed their motion upon one ground only; that of want of competent evidence to show want of due care or negligence on their part.
Assuming that the defendants had the right to float and drive • their logs down this stream, they had, nevertheless, a duty to perform in bestowing upon them proper attention. The right to use the river as a highway in which to transport their lumber, gave them no power to use it in a negligent manner, or carelessly to overflow the farms adjacent. When they put their logs upon the ice, or into the water of the river, it was their duty to see to it that they were transported in such a way as not to injure others. We might, perhaps, go farther, and say that even if the defendants had done all they could to prevent the injury, the law wrould presume negligence, for the defendants had no right to use the river to the injury of adjacent owners.
These logs belonged to the defendants. Three hundred thous- and feet of them came down the river at the time complained of, without the defendants or any of their servants being present, to take charge of them, or to prevent any damage that they might do. The dam was formed by the ice, logs and snow, and the injury was done to the plaintiff’s land. Now how much of the damage was caused by the defendants’ lumber and logs, was not at this time the question; but the only point then presented to the court was, whether there was any evidence competent to show negligence or fault on the part of the defendants. And in [44] regard to this w,e have no doubt. A statement of the position of the parties and their rights, coupled with the circumstances connected with the injury, satisfies us that the ruling of the court in denying the motion for a nonsuit was correct.
The next question is, whether the action can be maintained upon the plaintiff’s declaration. This question, as well as the others presented in the case, is not so clear as the first, but upon the whole we think the verdict may be sustained.
The plaintiff was in possession of the land under a bond for a deed from the town of Woodstock. By this bond the town, who owned the land, agreed that they would convey the premises to the plaintiff, on condition that he should support his father, mother, and grandmother during their natural lives; and they further agreed that he should have the use and profit of the farm so long as he should render the support to the individuals named ; and that he should have the privilege of managing and cultivating it without waste or detriment, &c. So long, then, as the plaintiff performed the conditions of the bond, he was entitled to the possession, free use, profit and income of the farm, and was also acquiring an interest in the land itself beyond that of a mere tenant, which would eventually, provided he continued to fulfill the conditions of the bond, give him a title to the place. See Pritchard v. Brown, 4 N. H. 397; Edgerly v. Sanborn, 6 N. H. 397. In the latter case it was held that he who is in possession of land under a bond for a deed, and has paid part of the consideration, has such an interest in the land as may be taken by extent.
The plaintiff, at the time the damage complained of was done, had performed a part of the consideration of the bond, and up to the time of the trial of the cause had supported the individuals according to the condition of the same. His father, however, had in the meantime deceased; an event which made the conditions less onerous, and which would add to the inducement to complete all the requirements of the bond.
The defendants contended that upon this proof of title the action could not be maintained upon the present declaration.
[45] The plaintiff alleges that he was seized of the premises, and that the defendants, not ignorant of the fact, committed the grievances complained of, whereby the soil was subverted, the grass then and there growing destroyed, and the land otherwise greatly injured and lessened in value. No specific title to the land is alleged, nor was it necessary that there should be, as mere possession is sufficient to maintain an action against a wrong doer. But the plaintiff can recover for nothing beyond what his right and interest shown will entitle him to.
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Eastman, J.
Taking the order in which the questions in this case are raised, and the first one presented arises upon the ruling of the court in denying the motion for a nonsuit.
The plaintiff had declared that he was seized of a tract of land in Woodstock, and that the defendants, not ignorant thereof, had caused to be placed in the Pemigewasset river, large quantities of logs, timber and trees, and wrongfully and negligently permitted the same to accumulate, obstruct and dam up the river before and near the plaintiff’s land, and opposite to the same, and neglected properly to direct, drive and float the logs and timber so as to keep them clear of the plaintiff’s land, whereby the river became, and was in consequence of the defendant’s negligence, greatly dammed up, and the plaintiff’s land was overflowed and drowned thereby; and the logs were thus negligently and wrongfully permitted by the defendants to float upon the land, and the soil was washed and subverted, and the grass injured and destroyed, and the land was otherwise damaged and lessened in value.
The case then finds the plaintiff’s evidence to be as follows : 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.
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 that there were in all three hundred thousand [43] 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.
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.
Upon this evidence the defendants 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 and the defendants excepted.
The defendants placed their motion upon one ground only; that of want of competent evidence to show want of due care or negligence on their part.
Assuming that the defendants had the right to float and drive • their logs down this stream, they had, nevertheless, a duty to perform in bestowing upon them proper attention. The right to use the river as a highway in which to transport their lumber, gave them no power to use it in a negligent manner, or carelessly to overflow the farms adjacent. When they put their logs upon the ice, or into the water of the river, it was their duty to see to it that they were transported in such a way as not to injure others. We might, perhaps, go farther, and say that even if the defendants had done all they could to prevent the injury, the law wrould presume negligence, for the defendants had no right to use the river to the injury of adjacent owners.
These logs belonged to the defendants. Three hundred thous- and feet of them came down the river at the time complained of, without the defendants or any of their servants being present, to take charge of them, or to prevent any damage that they might do. The dam was formed by the ice, logs and snow, and the injury was done to the plaintiff’s land. Now how much of the damage was caused by the defendants’ lumber and logs, was not at this time the question; but the only point then presented to the court was, whether there was any evidence competent to show negligence or fault on the part of the defendants. And in [44] regard to this w,e have no doubt. A statement of the position of the parties and their rights, coupled with the circumstances connected with the injury, satisfies us that the ruling of the court in denying the motion for a nonsuit was correct.
The next question is, whether the action can be maintained upon the plaintiff’s declaration. This question, as well as the others presented in the case, is not so clear as the first, but upon the whole we think the verdict may be sustained.
The plaintiff was in possession of the land under a bond for a deed from the town of Woodstock. By this bond the town, who owned the land, agreed that they would convey the premises to the plaintiff, on condition that he should support his father, mother, and grandmother during their natural lives; and they further agreed that he should have the use and profit of the farm so long as he should render the support to the individuals named ; and that he should have the privilege of managing and cultivating it without waste or detriment, &c. So long, then, as the plaintiff performed the conditions of the bond, he was entitled to the possession, free use, profit and income of the farm, and was also acquiring an interest in the land itself beyond that of a mere tenant, which would eventually, provided he continued to fulfill the conditions of the bond, give him a title to the place. See Pritchard v. Brown, 4 N. H. 397; Edgerly v. Sanborn, 6 N. H. 397. In the latter case it was held that he who is in possession of land under a bond for a deed, and has paid part of the consideration, has such an interest in the land as may be taken by extent.
The plaintiff, at the time the damage complained of was done, had performed a part of the consideration of the bond, and up to the time of the trial of the cause had supported the individuals according to the condition of the same. His father, however, had in the meantime deceased; an event which made the conditions less onerous, and which would add to the inducement to complete all the requirements of the bond.
The defendants contended that upon this proof of title the action could not be maintained upon the present declaration.
[45] The plaintiff alleges that he was seized of the premises, and that the defendants, not ignorant of the fact, committed the grievances complained of, whereby the soil was subverted, the grass then and there growing destroyed, and the land otherwise greatly injured and lessened in value. No specific title to the land is alleged, nor was it necessary that there should be, as mere possession is sufficient to maintain an action against a wrong doer. But the plaintiff can recover for nothing beyond what his right and interest shown will entitle him to.
It is well settled that both the tenant and landlord may maintain actions for injuries done to the soil, or buildings upon it. They are both injured, but in different degrees; the tenant in the interruption to his estate and the diminution of his profits, and the landlord in the more permanent injury to his property. Both may have separate actions for their several damages, and a recovery is to be had according to their respective interests. Rolles’ Abr., Trespass, N. 3, 4, 5, 67 ; 1 Saund. 322, note 3 ; Vin. Abr., Trespass, 3, 4; Co. Litt. 57, a, note 2; 2 Chitty’s Pl. 386 ; 2 Greenl. Ev., § 469 ; Starr & al. v. Jackson, 11 Mass. 519; Baker v. Saunderson, 3 Pick. 348; Davis v. Jewett, 13 N. H. 88; Plumer v. Harper, 3 N. H. 88.
It is immaterial whether the tenancy be one at will or for years; the action may be maintained and a recovery had according to the damage.
If the action is brought by the landlord or reversioner, who is out of possession, his specific interest in the property affected should be described. Not being in possession, his damages can-» not be known, except by a correct description of his title and the injury received, and his interest in the property should be stated according to the facts. Davis v. Jewett, 13 N. H. 88 ; Baker v. Saunderson, 3 Pick. 348; 1 Chitty’s Pl. 142; 2 ditto 378.
But where the plaintiff is in possession, in describing his right or interest in the property against a wrong doer for the recovery of damages and not the land itself, it is sufficient to state in the declaration that the plaintiff at the time of the injury was pos- [46] ■ sessed of the land. His rights and interest are matters of evidence only. 1 Saund. on Pl. & Ev. 339; 2 Saund. 113, a, note 1; ditto 172, note 1; Rider v. Smith, 3 Term 766.
This plaintiff showed himself in' possession of the premises described in the declaration, and that his possession was not dependent upon the will of the owners of the soil. As long as he kept the condition of the bond, so long was he entitled to the possession of the land, and no one could rightfully deprive him of the possession. He was, therefore, more than a mere tenant at will or lessee for years. He had in fact a freehold interest in the property ; and although the fee in the land was not in him but in the town, yet his interest was of that character that might eventually ripen into a perfect title to the premises.
But the declaration alleges only that the plaintiff was “ seized” of the land. It does not in terms allege possession. Were seizin possession merely, as is said in Frost v. Cloutman, 7 N. H. 9, 15, the plaintiff would need to show only possession as against a wrong doer; but it is believed that technically and more strictly speaking, a seizin of land is something more than a bare, naked possession; that it is the possession of at least a freehold. In either view, however, the declaration would be sufficient. The plaintiff had a possession, which was coupled with an interest in the premises, that was not limited to any specfic term, and a term not limited is a freehold.
The declaration then was sufficient to maintain the action, and the evidence was competent to sustain the declaration.
The deposition of Samuel George was rightly rejected. It was a deposition taken by the plaintiff, on notice and appearance by the defendants, but which had not been used, and which the plaintiff did not propose to use. But inasmuch as ■ the witness had deceased, the defendants claimed the right to use the deposition on the trial.
To the general rule that the testimony of a deceased witness, given in a former action between the same parties, is competent in a subsequent action, there are few if any exceptions. 1 Greenl. Ev. 163 ; Pike v. Crouch, 1 Ld. Raymond 780 ; Co[47] ker v. Farwell, 2 P. Williams 563; Todd v. Earl of Winchelsea, 3 Car. & Payne 387; Glass v. Beach, 5 Vermont 172 ; Jackson v. Bailey, 2 Johns. 17; Miles v. O’Hara, 4 Binn. 108; White v. Kiblin, 11 Johns. 128; Wilbur v. Selden, 6 Cowen 162 ; Crary v. Sprague, 12 Wendell 41.
As a general rule the parties must be the same and the point in issue the same. Some of the authorities hold the rule with great strictness, and require that the precise language of the witness must be given, or the testimony will be rejected. With us it is sufficient if the person called to prove what the deceased witness said on a former trial, can state the whole substance. Young v. Dearborn, 2 Foster 372.
We have examined the authorities with considerable care, but we do not find any case where what a deceased witness has sworn to, has been admitted on the ground of his decease, unless his testimony has been used on the former trial or hearing. Depositions may be taken under statutes and rules of court, and may be used by the parties taking them, on showing a cause for the caption which is recognized by the court as sufficient. 1 Greenl. Ev., § 322.
By our statute, in addition to the general enactment upon this subject", we have a provision for taking depositions in perpetual remembrance, and both parties can avail themselves of it. Comp. Stat., chap. 200, § 24; ditto, chap. 201.
In this case the deposition of George was taken in the ordinary way by the plaintiff. It was never used, and technically the witness had not testified in the cause. He had given a deposition to be used, provided the party taking it saw fit to use it. But until it was used, it was a piece of evidence belonging to the plaintiff, which he had taken, and over which the defendants had no control. If they wished for the testimony of the witness they also could have taken his deposition, or could run their risk of his decease. We do not see how the question can be distinguished from the ordinary occurrence of taking depositions, and the party who takes them using them or not, as he may think proper.
The fact that a party has taken depositions in a cause does [48] not compel him to use0 them, any more than his summoning a witness compels him to call him upon the stand. He who takes the depositions uses them or not as he may please, and the other side has no right to them, nor will a court order them to be used or given up for the benefit of the other party.
There is another consideration. The witness may be interested against the party taking the deposition, and if the opposing party can use such a deposition, then he will obtain the benefit of testimony which he could not under the ordinary rules of evidence. Crary v. Sprague, 12 Wendell 41.
The greatest objection which we find to this verdict is its amount. From a description of the property injured, and of the injury itself, it would seem as though the jury must have given damages under a misapprehension of the law; and yet, the court in their instructions distinctly told them that “ for the permanent injury to the soil, the town of Woodstock was alone entitled to recover.” The language used by the court, that the “jury should give damages commensurate with the injury which the plaintiff had sustained in his estate,” is the language of the books, and is strictly correct; still it might not at all times be fully comprehended by a jury, and would require explanation. This explanation the court attempted to give, and the jury were more than once told that the damages of a permanent character which happened to the land, belonged to the town, and they could immediately recover therefor.
As to the particular instructions requested to be given, “ that the plaintiff could recover nothing more than the damages to the grass crop of that yearj together with damages for the interruption of passage over the land,” they were too limited. There might be other crops raised upon the land, or preparations made for the same, and his possession might be disturbed and injured in other ways than simply passing over the land.
The trial appears to have taken place four or five years after the injury was sustained, and the jury had a view of the premises. The case also states that their attention was called to the sand that had been washed upon the land. Where a view is had [49] by a jury, and consequently much less evidence is necessary, it is impossible for a court to determine what the real damages are; and although the damages found by the jury in this case seem to us very large, yet we cannot say that the jury were not warranted, from the testimony on the trial, and from what they saw on the premises, in finding the amount which they did ; and we think there must be
Judgment on the verdict.