
    Conklin v. The White Water Valley Canal Company.
    If a plea of license answers the gravamen of the declaration, proof of the license will defeat the suit.
    Where an instruction given to the jury is objected to, but the evidence given at the trial is not contained in the record, and it does not, of itself, appear to be objectionable, the verdict of the juiy will not be set aside.
    
      Saturday, November 27.
    ERROR to the Wayne Circuit Court.
   Smith, J.

This was an action of trespass on the case brought by The White Water Valley Canal Company against Conklin. The injury complained of in the declaration was, that the defendant illegally, wrongfully, and without the consent of the plaintiff, dug a certain trench or tail-race from a mill belonging to him, so as to conduct the water from said mill into a feeder of the canal of the plaintiff, and thereby lowered and diminished the bank of said feeder, and left the loose earth, sand, and gravel in and upon the channel and banks of said tail-race liable to be removed and washed into said feeder, which would not have been thus exposed if the defendant had not made said tail-race; by means whereof, and by reason of a large quantity of water running out of the Hagerstown canal and into a certain stream of water running near to said mill and tail-race, and by reason of said last-mentioned stream being greatly swollen with water, the said last-named stream broke through the loose earth, sand, and gravel so cut, dug, and left loose as aforesaid along and upon said tail-race, and washed a large quantity thereof into said feeder, whereby the plaintiff was put to great trouble and expense in clearing out and removing the obstructions to the flowage of the water through said feeder caused thereby, &c.

Two pleas were filed upon which issues were taken. One of these pleas is, in substance, that the grievances complained of were done with the leave and license of the plaintiff. The jury returned a verdict for the plaintiff, and a motion for a new trial was overruled.

Upon the trial, the Court, after instructing the jury as to the facts from which they might infer a license to tap the canal-feeder with the tail-race of the mill, told them they must bear in mind that a mere license to enter the canal-feeder with the tail-race of the mill, either expressly given or implied from circumstances, does not cover the ground of complaint for leaving the loose earth, sand, and gravel on and along the line of the tail-race, in consequence of which they were washed into the canal-feeder as alleged; that a license to dig the race and enter the canal-feeder carried with it all the consequences necessarily flowing therefrom, but if the leaving the loose earth, sand, and gravel along the line of the race, in the manner alleged in the declaration, was not a necessary consequence flowing from the digging of the race, and entering the canal-feeder, then a license to dig the race and enter the feeder would not justify the case, and under such a state of facts they should find for the plaintiff.

We think this instruction is erroneous. The gravamen of the declaration is for the illegal digging of the tail-race. Consequently the issue made by the plea of leave and license covers the whole subject of complaint, and proof of such license defeats the suit. As no carelessness was averred in the declaration it was not competent for the plaintiff, under this issue, to prove that the injury resulted from the improper or careless manner in which the tail-race was constructed.

The plaintiff in error also complains of an instruction given relative to the measure of damages. That instruction was, that if the jury found for the plaintiff, the measure of damages should, be the amount of damages or injury sustained by the plaintiff immediately flowing from the acts complained of, or, in other words, the expenses necessary to clean out any dirt, sand, and gravel washed into the feeder, &c., in consequence of the wrongful acts of the defendant, injurious to the navigation and use of the feeder, with any other damages sustained by the company necessarily and unavoidably flowing from any hindrance to the navigation or use of the feeder or canal, in consequence of the defendant’s wrongful acts.

/. Rariden and 8. W. Parker, for the plaintiff.

J. 8. Neuman, for the defendant.

The evidence given upon the trial is not set out in the record, and we cannot say, without. a knowledge of the facts to which it was applied, that there is anything objectionable in this instruction.

Per Curiam.

The judgment is reversed with costs. Cause remanded, &c.  