Fraler v. Sears Union Water Co.

Baldwin, J., delivered the opinion of the Court—Terry, C. J., concurring.

This was an action for injuries to naming claims, and loss of gold-bearing earth, occasioned by the negligent building of defendants’ dam across and over a ravine, upon which the plaintiffs’ claims were located —the claims being above the dam. The injury is charged to have rusulted to the plaintiff, from the careless construction of the dam, and a reservoir, whereby the gold-bearing earth of the plaintiffs was washed away by the water and lost, and other injuries done to their mining claims and property.

The defendants demurred to the complaint, and assigned several technical causes of demurrer. The main ground taken here in argument is, that there is a misjoinder of causes of action in the complaint, in this-: that the complaint claims damages for the immediate injury, by the breaking of the dam, to the pay-dirt, etc., of the plaintiffs, and also to the plaintiffs in preventing them from working their claim. But this is no misjoinder—if the objection be warranted by the facts—even according to the rules of common law pleading, which recognized the nice, and now obsolete, distinction between the action of trespass vi et armis, and the action of trespass on the case. For either of these classes of damages, the form of remedy would be ease by the old rule; the gist of the action not being the erection or breaking of the dam, but the negligence—the indirect consequence of which negligence was the injury—just as in cases of injuries caused by the not keeping of streets in repair, and the like. Chitty on Pleadings, 1 vol. 126.

The complaint seems to be well drawn, and sufficiently states the facts, viz.: that the plaintiffs, before the committing the grievances complained of, owned and possessed the premises injured, and that the [558]defendants carelessly, negligently and unskillfully built the dam and reservoir, and filled it with great quantities of water, which they detained at and along the dam, thereby causing the plaintiffs’ claims to overflow, and the gold-dirt to be washed away, and the claims to remain unworked, etc.

Numerous instri^tions were given, and several were refused. The Court instructed the jury that the plaintiff could not recover unless the defendant was guilty of gross negligence. This was repeated in a variety of forms. We think that, if any fault is to be found with the charges given, it is that they were too favorable to the defendant.