US SUPREME COURT DECISIONS

The statute of New Hampshire providing for proceedings against mill owners to recover damages resulting from overflows of land caused by dams erected by them contained, among other things, a provision that

"if either party shall so elect, said court shall direct an issue to the jury to try the facts alleged in the said petition and assess the damages, and judgment rendered on the verdict of such jury, with fifty percent added, shall be final, and said court may award costs to either party at its discretion."

In this case, both parties elected trial by jury, which resulted in a verdict for damages for the defendant in error. Held that the plaintiff in error, by availing itself of the power conferred by the statute and joining in the trial for the assessment of damages, was precluded from denying the validity of that provision which prescribes that fifty percent shall be added to the amount of the verdict, as the plaintiff in error was at liberty to exercise the privilege or not, as it thought fit.

This was a writ of error to reverse a judgment of the Supreme Court of New Hampshire against the Electric Company, a corporation of the State of New Hampshire, the plaintiff in error, upon a petition filed by Samuel I. Dow for the assessment of damages occasioned to his land by an overflow caused by a dam erected by the defendant company in the Piscataqua River. The defendant company also filed a petition praying for an inquisition into the question of damages. The proceedings were had under the general mill act of that state, approved July 3, 1868. Both parties elected trial by jury, which resulted in a verdict for Dow in the sum of $1,500. The plaintiff moved that fifty percent be added to the amount of the verdict in pursuance of a provision of the statute which is as follows:

"If either party shall so elect, said court shall direct an issue to the jury to try the facts alleged in the said petition and assess the damages, and judgment rendered on the verdict of such jury, with fifty percent added, shall be final, and said court may award costs to either party at its discretion. "

Page 166 U. S. 490

The defendant objected to this motion on the ground that said provision of the statute requiring the court to add fifty percent to the damages assessed by the jury was in violation of the Constitution of the United States. The question thus raised was reserved by the trial judge, and certified to the law term of the supreme court of the state, which overruled the defendant's contention, and judgment was accordingly entered in the supreme court for the amount of the verdict, with fifty percent added, and costs, to review which this writ of error was sued out.