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Langford vs. Owsley.
COURT OF APPEALS OF KENTUCKY
5 Ky. 215; 1810 Ky. LEXIS 93; 2 Bibb 215
September, 1810, Decided
DISPOSITION: [**1] Judgment reversed, verdict of the jury set aside, and cause remanded.
JUDGES: Ch. J. BOYLE. Judge LOGAN absent.
OPINION BY: BOYLE
[*215] Judge LOGAN absent.
OPINION of the Court, by Ch. J. BOYLE.--This was an action upon the case, for diverting the water of a certain stream from running in its usual and ancient course to the plaintiff's mills, which he alleges were established according to law, and of which he was rightfully possessed. The defendant pleaded not guilty. [*216] On the trial, the plaintiff having produced the record of the proceedings and order of the Lincoln county court, giving him leave to erect his mills and dam four feet six inches high, and having proved by a witness the digging of a canal by the defendant to divert the water from the plaintiff's mills, the defendant attempted to examine the witness, to shew that the land embracing the canal belonged to the defendant; that the dam was more than four feet six inches high; that in consequence of such excessive height of the dam, the improvements of the defendant were overflown; that to convey off his improvements the water so overflowing them, the canal was dug, and that the canal, as made, would not prejudice [**2] the mills with such a dam as was authorised by the order establishing it. But any testimony of this kind was objected to by the plaintiff, and the court prohibited the testimony from going to the jury, being in their opinion inadmissible evidence upon the general issue. To this opinion of the court the defendant excepted, and a verdict and judgment having been given against him, he has appealed to this court.
The principal question in this case respects the admissibility of the testimony offered by the defendant and rejected by the court below.
With respect to evidence admissible upon the general issue, there is a clear distinction recognized by all the books of authority, between actions of trespass vi et armis, and actions upon the case, as this was. In the former, any special matter of justification must be pleaded, and cannot be given in evidence upon the general issue; but in the latter the plaintiff is obliged to state in substance the whole circumstances of his case in his declaration, and can only recover upon the justice and equity of his whole case. Whatever will, therefore, in equity and justice, according to the circumstances of the case, bar the plaintiff's recovery, [**3] may be given in evidence by the defendant upon the general issue--See 2 Stra. 872, 1 Wils. Rep. 44-5, 174-5, Peak's Ev. 284-5, and 3 Bur. 1353.
It is a fundamental principle of moral and social justice, that no one shall exercise his rights to the injury of another. The inundation of the defendant's improvements, by the erection of the plaintiff's milldam to a height beyond what was authorised by the order establishing [*217] it, was a manifest violation of this principle, and a nuisance to the defendant, which he had a right peacefully to remove, provided however he did not in so doing transgress the bounds of a bare removal or abatement of the nuisance, and molest the plaintiff in the lawful exercise of his rights. Evidence of these circumstances was clearly admissible under the general issue, and the court below erred in rejecting it. Several objections are made to the declaration, one of which seems to merit attention. The declaration charges the continuance of the injury to the plaintiff until the time when the declaration was filed, whereas the plaintiff in this action could legally recover only for damages he had sustained up to the commencement [**4] of the suit, which in this case was the emanation of the writ. In other respects the declaration is correct.
Judgment reversed, the verdict of the jury set aside, and the cause remanded for new proceedings to be had therein not inconsistent with the foregoing opinion, &c.