US SUPREME COURT DECISIONS

Where an action of trespass quare clausum fregit was brought, and the defendants justified, and the court allowed the defendants, upon the trial, to open and close the argument, this ruling of the court is not a proper subject for a bill of exceptions.

The suit being brought by the owner of a mill dam below against the owners of a mill above for forcibly taking down a part of the dam, upon the allegation that it injured the mill above, it was proper for the court to charge the jury that if they found for the plaintiff, upon the ground that his dam caused no injury to the mill above, they should allow in damages the cost of restoring so much of the dam as was taken down and compensation for the necessary delay of the plaintiff's mill, and they might also allow such sum for the expenses of prosecuting the action over and above the taxable costs as they should find the plaintiff had necessarily incurred, for counsel fees and the pay of engineers in making surveys &c.

But if they should find for the plaintiff on the ground that the defendants had taken down more of the dam than was necessary to relieve the mill above, then they would allow in damages the cost of replacing such excess and compensation for any delay or damage occasioned by such excess, but not anything for counsel fees or extra compensation to engineers unless the taking down of such excess was wanton and malicious.

In actions of trespass and all actions on the case for torts, a jury may give exemplary or vindictive damages depending upon the peculiar circumstances of each case. But the amount of counsel fees, as such, ought not to be taken as the measure of punishment or a necessary element in its infliction.

The doctrine of costs explained.

Whether the verdict would carry costs or not was a question with which the jury had nothing to do.

This was an action of trespass quare clausum fregit brought by Day, a citizen of New York, against the defendants in error, citizens of Massachusetts, for pulling down a mill dam within the Town of Great Barrington in the County of Berkshire, Massachusetts.

The defendants put in a plea of not guilty and also a special plea of justification, viz.:

"And the defendants further say that at the time when the said trespasses are alleged to have been committed and for a long time previously thereto and prior to and at the time of the erection of the said plaintiff's said dam, certain mills and a certain mill dam, the property of and in the use and possession of

Page 54 U. S. 364

the Berkshire Woolen Company, a corporation duly established by the laws of the State of Massachusetts, had been and were then lawfully erected and maintained by, upon, and across said stream on which plaintiff's dam was built; that while said mills and dam were thus erected and maintained and used by said corporation, the plaintiff unlawfully caused to be erected in said stream and below said dam, and at the time of said alleged trespass unlawfully caused to be maintained therein the said dam in his declaration mentioned, in such manner as to injure the said mills and dam of the said corporation; that the defendants, by direction of said Berkshire Woolen Company and as their agents and servants, did enter upon the said plaintiff's close and did break down and demolish said plaintiff's dam in the manner least injurious to said dam; that they broke down and demolished no more of said dam than was necessary to remove or relieve the injury to said company's mills and dam caused by the maintenance of said plaintiff's said dam as aforesaid, and that said defendants did not break and enter the plaintiff's close any further or otherwise, nor thereupon use more force or violence than were reasonably necessary to relieve the injury aforesaid."

The plaintiff joined issue upon the plea of not guilty and replied to the special plea as follows:

"And as to the said plea of the said defendants by them first above pleaded the said plaintiff says that he ought not to be barred from having and maintaining his aforesaid action thereof against them, because he says that although true it is that at the said time when &c., the said Berkshire Woolen Company were then the owners and possessed of the said mills and dam in the said plea mentioned, and although true it is that the said mills and dam were upon and across the same stream on which the said plaintiff's dam then was, and although true it was that the said defendants committed the said trespasses by command of the said corporation, for replication nevertheless in this behalf the said plaintiff says that the said defendants, of their own wrong and without the residue of the cause in their said plea alleged, broke and entered the close of the said plaintiff and tore down and destroyed the said dam and committed the said trespasses in the introductory part of the said plea mentioned in manner and form as the said plaintiff hath above complained, and this he prays may be inquired of by the country. Wherefore he prays judgment and for his costs."

"By B. R. CURTIS, Esq., his Attorney"

"And the defendants do the like."

"By WILLIAM WHITING, Esq., their Attorney"

chanrobles.com-red

Page 54 U. S. 365

Upon the trial, the jury came into court once for instructions, and afterwards returned three times with verdicts.

The final verdict was as follows:

"In the above-entitled cause, the jury finds that the reduction of the said dam of the said plaintiff to the extent of three inches for its entire length was justified, but that the further reduction was not justified, and so the jury finds that the said defendants, of their own wrong and without the residue of the cause by the said defendants in their said first plea alleged, committed the trespasses in the said plea mentioned in manner and form as the said plaintiff hath in his said declaration complained, and thereof assess damages in the sum of two hundred dollars."

"ROBERT ORR, Foreman"

Whereupon the court entered up judgment for two hundred dollars damages, without costs. The reason why the judgment was entered "without costs" may be seen by a reference to a book recently published by Stephen D. Law, Esq., 256. The book is upon the jurisdiction and practice of the United States courts.

The bill of exceptions contains the proceedings of the court with respect to these several verdicts, and was as follows:

"Bill of Exceptions"

"This is an action of trespass for breaking and entering the plaintiff's close and tearing down his mill dam. The defendants justified under an alleged right to enter &c., because the dam was a nuisance to mills above on the same stream belonging to the Berkshire Woolen Company, whose servants the defendants were, and that by command of the said company the defendants entered and took down so much and no more of the said dam as was necessary to relieve the mills above."

"At the trial, the defendants claimed the right to begin and offer their evidence first and open and close the argument. The plaintiff claimed the same right. The presiding judge ruled in favor of the defendants, and the plaintiff's counsel excepted to the ruling. The presiding judge instructed the jury in his first summing up that the defendants had a right by law to enter the plaintiff's close and to take down so much of the plaintiff's dam as was necessary to relieve the mills above from all practical injury occasioned by that dam, but that if the defendants had taken down more of the dam than was necessary for that end, or if none was necessary to be taken down for that end, the jury must find for the plaintiff."

"That if the jury should find for the plaintiff on the last ground, viz., that the plaintiff's dam caused no injury to the mills above, the plaintiff was entitled to a complete indemnity,

Page 54 U. S. 366

and the jury would allow in damages the cost of restoring so much of the dam as was taken down and compensation for necessary delay of plaintiff's mill, and they might also allow such sum for the expenses of prosecuting the action, over and above the taxable costs, as they should find the plaintiff had necessarily incurred for counsel fees and the pay of engineers in making surveys &c. But if the jury should find for the plaintiff on the first ground, viz., in that the defendants had taken down more of the dam than was necessary to relieve the mills above unless such excess was wanton and malicious, then the jury would allow in damages the cost of replacing such excess, and compensation for any delay or damage occasioned by such excess, but not anything for counsel fees or extra compensation to engineers."

"The plaintiff's counsel requested the court to instruct the jury that they might allow counsel fees &c. if there was any excess in taking down more of the dam than was justifiable, and gave as a reason that the defendants thereby became trespassers ab initio. The presiding judge instructed the jury as above set forth on this point."

After being charged by the presiding judge, the jury retired, and subsequently came into court for instructions, preferring a written request, as follows:

" U.S.C.C. Jury Room, Dec. 8, 1849"

"TO HIS HONOR JUDGE SPRAGUE: "

" If the jury find that the plaintiff's dam was too high and ought to be reduced, but not to the extent of the reduction by the defendants, can the jury find a verdict to that effect for the plaintiff according to law? If so, can they find damages for the excess of such reduction?"

" R. ORR, Foreman"

"Thereupon the presiding judge gave anew the instructions above set forth, except that he instructed them not to allow anything for counsel fees &c. if they should find that the reduction of the dam to any extent was justifiable. The jury again retired, and subsequently returned into court with a written paper, in the words following: "

" U.S.C.C. Jury Room, Dec. 8, 1849"

" In the case of H. H. Day against Woodworth et al., the jury find that the reduction of the plaintiff's dam to the extent of three inches for its entire length justifiable. The jury further find that the defendants pay to the plaintiff the sum of one thousand dollars in full for such excess of reduction and delay."

" ROBERT ORR, Foreman"

"The plaintiff asked to have a verdict presented to the foreman

Page 54 U. S. 367

for his signature, following the words of the issue. The presiding judge stated that he was not prepared to say to the jury that that would be the same in substance as their finding, and ruled that the verdict, to be presented to the foreman for his signature, should also set forth that part of the finding that the plaintiff's dam was lawfully reduced to the extent of three inches throughout its entire length. There was no evidence that the defendants had reduced the plaintiff's dam through its entire length, but it appeared that the plaintiff's dam was one hundred and twelve feet long, and that the part cut down by the defendants was the most westerly part, about fifty-four feet in length, and that this fifty-four feet was cut down about ___ inches, and that this would have the effect of reducing the obstruction presented by the dam more than three inches for its entire length."

"To the above rulings of the presiding judge the plaintiff excepted."

"In this stage of the proceedings, the defendants' counsel desired of the presiding judge to inquire of the jury whether something for counsel fees was not included in the sum of one thousand dollars mentioned in said finding of the jury."

"The presiding judge being of opinion that there was no evidence which would warrant the jury in finding damages to the amount of one thousand dollars for the said excess of reducing the dam, without expressing this opinion, made the inquiry requested, to which the foreman answered that they did not allow anything for counsel fees, but only for the excess and delay, as appeared by the written verdict. The defendants' counsel then urged that the written verdict said that the sum of one thousand dollars was to be in full, and requested the presiding judge to ask the jury if they did not allow that sum in the expectation that the plaintiff was to recover no more. The foreman of the jury responded in substance as before, but one of his fellows said he understood the plaintiff was to recover no more, and that each party was to pay his own costs, and that he had agreed to the verdict on that understanding. This understanding was denied by another of the jury, and the presiding judge then said that it must be the verdict of each juror, and that this was not the verdict of the one who said he had agreed to it on the misunderstanding, and therefore the presiding judge proceeded to sum up anew on the subject of damages, referring to the evidence and giving to the jury substantially the instructions in point of law before given, and adding that if the plaintiff should recover $1,000 damages, he would, as the prevailing party, by law recover his taxable costs, and having so done, directed the jury again to retire; to this proceeding the plaintiff's counsel excepted. Subsequently the jury again returned into

Page 54 U. S. 368

court, and brought in a second verdict, in writing, in the words following: "

" U.S.C.C. Jury Room, Dec. 8, 1849"

" In the case of Horace H. Day v. Woodworth et al., the jury find that the reduction of the plaintiff's dam to the effect of three inches for its entire length was justifiable."

"The jury further find that the defendants pay to the plaintiff the sum of two hundred dollars for such excess of reduction and delay."

" ROBERT ORR, Foreman"

"This verdict was put in the form in which it appears on the record, but before it was signed, the plaintiff's counsel suggested to the presiding judge that as the jury had been instructed that in one event the plaintiff would recover costs, some of the jury might have agreed to this verdict with that understanding, and requested that this inquiry might be made of the jury; thereupon the presiding judge inquired of the jury whether, in rendering this verdict, they had any reference to costs, and the foreman of the jury, having replied that they had not, was about to sign the verdict when one of his fellows objected and stated that he had agreed to the verdict in the belief that, as prevailing party, the plaintiff could recover his costs; thereupon the presiding judge charged the jury a third time on the subject of damages, referring to the evidence and repeating in substance the instructions in point of law before given, and further instructed them that the plaintiff, recovering only two hundred dollars, would not recover costs, and that it would be a violation of their oaths to have any regard to the costs, it being their duty to find the actual damage proved, and no more, and directed them again to retire; which having done, they brought in the verdict which appears of record. To all these proceedings the plaintiff excepted and prayed that his exceptions might be allowed and that this bill of exceptions might be signed and sealed by his honor the judge; all of which being found true, the same is accordingly signed and sealed."

"PELEG SPRAGUE [SEAL]"

"Judge of the U.S. Mass. District"

Upon this exception the case came up to this Court. chanrobles.com-red

Page 54 U. S. 369