from a raceway, it was held that the defendant might show under a general denial, that the raceway ran through his land, which could be rebutted only by proof of an easement, and that this would involve title, which would oust the justice's jurisdiction. Where trespass is brought for flowage, if the defendant relies on a license, it must be pleaded specially, and cannot be proved under the general issue; but it is sufficiently pleaded, if the facts constituting the license are averred.2 A plea of license to divert does not draw in question the title to the premises.3 § 490. In trespass a prescriptive right to a watercourse, or in respect of any use of waters, must be pleaded specially; 4 and at common law it was necessary to show who was seized in fee of the land in respect of which it was claimed, and then to aver that immemorially all the ancestors of the party so seized were entitled to, and from time to time actually exercised the right; and the title was required to be pleaded with exactness.5 § 491. A prescription cannot be pleaded against a prescription without a traverse of the plaintiff's right. This was decided in an action for the diversion of a watercourse in which the plaintiff claimed a prescriptive right to the flow of the water, and the defendant set up a prescription to maintain a ditch on his land. A plea of prescriptive right in 1 O'Donnell v. Brown, 3 Lans. 474. In another case, appealed from a justice's court, it was held that the question where a stream ought to run (in trespass for entry to abate a nuisance and restore a diverted stream to its channel) did not involve title. Bowyer v. Schofield, 1 Abbott, N. Y. Ct. of Ap. 177; s. c. 2 Keyes, 628. But the question whether one party has a prescriptive right to use a well on the premises of another involves title. Gage v. Hill, 43 Barb. 43. 466. 2 Lockhart v. Geir, 54 Wis. 133. 4 1 Chitty Pl. (16th ed.), 541. 5 Ibid. And see Gale on Easements (5th ed.), 677; 1 Wms. Saund. 346n; 1 Notes to Saund. 624. By the Prescription Act, 2 & 3 Wm. 4, c. 71, it was provided that it shall be sufficient to allege the enjoyment of such rights as of right, by the occupiers of the tenement in respect of which it is claimed, for the required periods, without setting out the title of the fee. 6 Murgatroyd v. Law, Carthew, 116. The Hilary Rules (4 Will. 4, 1834) provided that in all actions in which a right of way or other similar right respect of a mill, to use the water of a canal for generating steam and supplying a cistern, was held divisible where the evidence supported the right for the former purpose, but not for the latter. Where the defendant in one plea claimed the right to have water flow from a mill-stream to a ditch at all times, and in another plea claimed the right only at times when the stream was increased by certain water called "flash water," and the jury found the right in his favor at all times, the finding was held to include the right claimed by the other plea, and the jury was discharged as to it. Where the defendant relies on an easement, the plaintiff may defeat it by showing that the defendant held the estates by unity of possession without a special replication to that effect.3 is so pleaded, if the allegations as to the extent of the right are capable of being construed distributively, they shall be taken distributively. This was held to apply to the case of a claim of right to pass and repass for the purpose of carrying water and goods, where the jury affirmed the right so far as it related to the carrying of water, but negatived it as to the rest. Knight v. Moore, 3 Scott, 326; 3 Bing. N. C. 3. 15 M. & W. 237. Of a prescriptive right to discharge noxious water into a stream; Wright v. Williams, 1 M. & W. 77. Of a prescriptive right to scour and amend the channel of a watercourse; Peter v. Daniel, 5 D. & L. 501. In justification of a trespass, because the defendants had, as occupiers of a mill, an easement of going upon the close to repair the banks of a stream which flowed to the mill; Clay v. Thackrah, 9 C. & P. 47. In 1 Rochdale Canal Co. v. Radcliffe, justification of the obstruction of a 18 Q. B. 287. 2 Drewett v. Sheard, 7 C. & P. 465. 3 Clay v. Thackrah, 9 C. & P. 47, where easement of way was claimed. Only v. Gardiner, 4 M. & W. 496. For a form of pleas denying the plaintiff's right to the water, see Thomas v. Thomas, 2 Cr. M. & R. 37. For form of plea of immemorial right at common law to discharge water from a tan-yard into a stream, see Moore v. Webb, 1 C. B. N. s. 673. Of a prescriptive right to throw refuse and cinders into a stream; Murgatroyd v. Robinson, 7 El. & B. 391; Carlyon v. Lovering, 1 H. & N. 784; s. c. 26 L. J. Ex. 251. Under the Prescription Act (2 & 3 Will. 4, c. 71) of prescriptive right to lower a weir for the purpose of irrigation; Ward v. Robins, watercourse, because the plaintiff thereby wrongfully discharged water upon the defendant's land; Roberts v. Rose, L. R. 1 Ex. 82. For other forms of pleas, see 2 Chitty Pl. (16th ed.), 733. By the Supreme Court of Judicature Act of 1873, 36 & 37 Vietc. 66, Schedule "Rules of Procedure," R. 1 (L. R. 8 Gen. Sts. 350), one form of action is substituted for the dif ferent forms employed at common law. In the Judicature Act of 1875, 38 & 39 Vict. c. 77, First Schedule, Order XIX., r. 20 (L. R. 10 Gen. Sts. 797), it is provided: "It shall not be sufficient for a defendant in his defence to deny generally the facts alleged by the statement of claim, or for a plaintiff in his reply to deny generally the facts alleged in a de § 492. In order to recover, the plaintiff must prove his right and the injury caused by the defendant. His right may be in possession or reversion, or it may be an incorporeal right; but he must prove the right which he has alleged, and in respect of which he has brought suit. The subject of variance has been already considered under the subject of pleading. As the defendant may defeat the action by proving a right in himself, the same rules will apply to evidence of right in either party. § 493. Evidence of a similar injury to other persons or tracts of land is within the rule excluding res inter alios acta, unless it is shown that all the conditions of the two events are the same. So where the injury was caused by removing stones from a river, in consequence of which the river washed away the plaintiff's land, evidence that the removal of stones at another place on the river had produced the same effect was excluded.2 § 494. Damage need not be shown where the injury is to a private right,3 but must be for injuries to an individual by a public nuisance; and we have considered the time to which damages should be computed. Evidence of special damage fence by way of counter-claim, but each party must deal specifically with each allegation of fact of which he does not admit the truth." 1 See ante, § 478. The plaintiff has a right to support his cause by proof of the facts stated in his declaration, whether they are sufficient in law to entitle him to recover or not; and this can only be prevented by a demurrer. So the plaintiffs should be allowed to prove a corruption of a stream as alleged, although it may be shown by the defendants to be no ground for making them liable, if the issue has not been framed so as to render such proof unnecessary. How ell r. McCoy, 3 Rawle, 256. 2 Hawks v. Charlmont, 110 Mass. 110. For applications of the rule to payments for the flowage of other lands, see Tyler v. Mather, 9 Gray, 177; Ellis v. Harris, 32 Gratt. 684. Where the plaintiff claimed the whole of the bed of a river running between his land and that of the defendant, the plaintiff was allowed to give evidence of acts of ownership by him lower down the stream, where the river flowed between his land and that of a third person which adjoined the defendant's land; and of repairs done to a fence along the river bank, dividing the third person's land from the river, which was in continuation of a fence dividing the defendant's land from the river. Jones v. Williams, 2 M. & W. 326. Damages is admissible only when such damage is alleged. must be connected with the injury complained of. In an action for damages by the erection of an embankment cutting off the plaintiff's land from the river, it was held that the plaintiff might show the prevention of deposit of enriching sediment by the entire embankment, and not simply by that portion in front of his land.2 § 495. The rule excluding evidence of opinion is applied to matters of damage. So, opinions of witnesses as to the amount of damages caused by the deprivation or withdrawal of water from a tavern are inadmissible. In an action for flowage, the opinion of a witness as to the amount of damage sustained was held inadmissible. And in Ohio, it was held that a person who was present during the trial of a cause, and heard witnesses describe the manner in which a ford was injured by the erection of a dam across the stream below the ford, could not be allowed to give his opinion of the damages sustained by the plaintiff.5 If the finding of damages by the jury is excessive, it is ground for allowing a new trial. But if the jury merely compute the damages for too long a time, and the excess is ascertainable, the plaintiff may have judg ment by remitting the excess. A verdict will not be set aside as against the weight of evidence, where the witnesses on one side satisfactorily prove that a dam has not been raised, and those on the other prove that the water in it is higher when the raising of the water, as found by the verdict, can be accounted for by other alterations in the dam.8 1 Ellicott v. Lamborne, 2 Md. 131; McTavish v. Carroll, 13 Md. 429; Solms v. Lias, 16 Abb. Pr. 311. 2 Concord Railroad Co. v. Greely, 23 N. H. 237. So where the defendant has cut away the portion of the plaintiff's land abutting upon a lake, and made it liable to be washed away, the plaintiff may recover the cost of a retaining wall. Thompson v. Milwaukee Railway Co., 27 Wis. 93; Price v. Milwaukee Railway Co., 27 Wis. 98. § 496. The evidence for the defendant may of course be either in rebuttal of the plaintiff's case, or in support of his own. If he relies on a license, it may be proved by parol.1 A parol license to erect a mill-dam, by which the lands above will be covered with water when executed, has been held binding on all subsequent purchasers of the lands affected.2 $497. Under a denial of the injurious consequences of the act complained of, the defendant may show that the volume of the stream has not been diminished or its quality changed. So where water was diverted to a reservoir and mixed with other water obtained from the earth, and the whole after being used for a steam-engine was returned to the river, Baron Alderson said: "I left it to the jury to say whether the same quantity of water continued to run in the river, as if none of its water had entered the premises of the 1 Addison v. Hack, 2 Gill, 221. 2 McKellip v. McIlhenny, 4 Watts, 317. In Liggins v. Inge, 7 Bing. 682, where the plaintiff's father, by oral license, permitted the defendants to lower the bank of a river and make a weir above the plaintiff's mill, where by less water flowed to the plaintiff's mill than before, which proving in-jurious, the father had, after a lapse of five years, requested them to restore the banks to the former level, it was held that no action could be maintained against the defendants for continuing the weir. Tindal, C. J., said: "This is not a license to do acts which consist in repetition, as to walk in a park, to use a carriage-way, to fish in the waters of another, or the like; which license, if countermanded, the party is but in the same situation as he was before it was granted; but this is a license to construct a work which is attended with expense to the party using the license; so that after the same is countermanded, the party to whom it is granted may sustain a heavy loss. It is a license to do something that, in its own nature, seems intended to be permanent and continu ing. And it was the fault of the party himself, if he meant to reserve the power of revoking such a license after it was carried into effect, that he did not expressly reserve that right when he granted the license, or limit it as to duration. Indeed, the person who authorizes the weir to be erected becomes, in some sense, a party to the actual erection of it; and cannot afterwards complain of the result of an act which he himself contributed to effect." In Fitch v. Seymour, 9 Met. 462, the action was by a purchaser whose land was flowed under an oral agreement and license from the plaintiff's grantor. It was brought for a breach of a covenant against incumbrances by such flowage. The court held that the agreement could not bind the estate as to future damages, not being in writing, and that the flowage was therefore no breach of the covenant, and the party flowing the land was liable for such damages to the present owner. The Mill Act there gave annual damages for flowage, recoverable by successive actions. 3 Embrey v. Owen, 6 Exch. 353. |
