Johnson v. Lewis

13 Conn. 303

• Court: Supreme Court of Connecticut
• Decided: July 15, 1839
• Status: Published

Opinion

Sherman, J.

This motion complains of the charge as erroneous, in three particulars. I. In not directing the jury that certain facts, which the defendant adduced testimony to prove, on the trial, amounted to a license. The silence of Nathan Comstock, under whom the plaintiff claims, when he was present, during the erection of the dam, and the opinion he is said to have expressed, that the dam would be beneficial to his mill, are, at most, but evidence of a license to erect the dam. The same may be said of the declaration of the plaintiff himself, that'he was satisfied with the manner in which the defendant then used the water, j^These acts and decía-rations were properly left to the jury as evidence of a license, and were accompanied with instructions from the court, which are unobjectionable. The court could not regard them as a license, if stated in a plea, or found by a special verdict. The inference to be made from them, was within the peculiar province of the jury.

2. The defendant, at the trial, insisted, and requested the court to charge the jury, that this action could not be maintained, unless the plaintiff proved, that before the occurrence of the injuries for which he sought redress, he had made a special request of the defendant to remove the obstruction; but on this point the court gave no directions to the jury.

It was decided in Penruddock’s case, 5 Co. 101., that without request to ,remove the nuisance a quod permittat would not lie against the feoffee of him who erected it That was for an injury occasioned by the defendant’s roof projecting over the yard of the plaintiff. In 1 Chitt. Plead. 71. it is said) that every occupier is liable for the continuance of a nuisance on his own land, though erected by another, if he refused to remove the same, after notice. And in 2 Chitt. Plead.

333. note c. the author adds, that if the action is not brought against the original erector of the nuisance, but against his feoffee, lessee &c., it is necessary to allege a special request to the defendant to remove it. An omission of this allegation, however, is cured by verdict; otherwise the remedy would be by motion in arrest. Therefore, in Tomlin v. Fuller, 1 Mod. 27. although the court were unanimously of opinion, that an allegation of a request was in that case necessary, and that the declaration, without it, was bad on demurrer; yet, on motion'in arrest, they gave judgment for the plaintiff, because the defect was cured by verdict. How far proof of knowledge of the injury resulting from a dam or other nuisance, made by the defendant, on his own property, may, in any case, be requisite, it is not now necessary to determine; but the law is well settled, that a purchaser of the property on which a nuisance is erected, is not liable for its continuance, unless he has been requested to remove it. This rule is very reasonable. The purchaser of property might be subÍected to great injustice, if he were made responsible for of which he was ignorant, and for damages which he never intended to occasion. They are often such as cannot easily be known, except to the party injured. A 'plaintiff ought not to rest in silence, and finally surprise an unsuspecting purchaser, by an action for damages; but should be presumed to acquiesce until he requests a removal of the nuisance.

It is urged in argument, that the defendant himself is the author of the injuries which the plaintiff has sustained, because they result from his own use of the water, and not from the dam which was erected by his grantor. This position, however, is novel, and unsustained by any authority. The dam was erected for the purpose of retaining the water, and will necessarily produce that effect, unless, by raising the gate, an opening is made for its escape.

We consider the court as having erred in not presenting the law upon this point to the jury.

3. The court was requested, by the defendant, to charge the jury, that although the plaintiff had acquired aright to the limited use of water necessary for the carding-machine formerly established where the plaintiff’s works are now located, yet he “ could not recover for any obstruction of water; by the defendant, provided enough still flowed to the plaintiff’s works to have carried such carding-machine, had it remained.” But the counsel for the defendant have properly waived this point, considering it as already settled by the court, in the case of Buddington & al. v. Bradley, 10 Conn. Rep. 213.

Upon the second exception only we would advise a new trial.

In this opinion the other Judges concurred.

New trial to be granted.