Wright v. Carpenter

By the Court, Crockett, J.: The action is ejectment, and the principal contest is whether the demanded premises passed to the State as swamp and overflowed land, under what is known as the Arkansas Act. At the trial the Court sent the jury to view the premises in controversy, as authorized by section 610 of the Code of Civil Procedure; and at the close of the testimony, on the request of the plaintiff, gave to the jury the following, among other instructions:

“Ninth. The jury, under the order of this Court, proceeded to view and examine the lands in controversy, and they are at liberty, and it is their duty to give such examination made by them its due and proper weight in assisting them to determine the character of the lands on the 28th of September, 1850.

“Tenth. If the jury find from the evidence of the witnesses, and from their examination of the lands in controversy that it was such on the 28th day of September, 1850, that it was rendered unfit for cultivation by reason of its overflow, it would be overflowed lands within the meaning of the Act of that date, even though at that precise time it had been dry.”

These instructions are erroneous in so far as they authorized the jury to take into consideration the result of their own examination of the land, in determining its character as swamp and overflowed, or otherwise. In authorizing [610]the Court to send the jury to view the premises in litigation, it was not the purpose of the statute to convert the jurors into silent witnesses, acting on their own inspection of the land, but only to enable them the more clearly to understand and apply the evidence. If the rule were otherwise, the jury might base its verdict wholly on its own inspection of the premises, regardless of an overwhelming weight of evidence to the contrary, and the losing party would be without a remedy by motion for a new trial. It would be impossible to determine how much weight was due to the inspection by the jury as contrasted with the opposing evidence, or (treating the inspection as in the nature of evidence) whether it was sufficient to raise a substantial conflict in the evidence. The cause would be determined not upon evidence given in Court, to. be discussed by counsel and considered by the Court in deciding a motion for a new trial, but upon the opinions of the jurors founded on a personal inspection, the value or the accuracy of which there would heno method of ascertaining. The statute could not have intended to produce such results as these, in authorizing the jury to view the premises.