
    *Ellis v. Harris’ Ex’or
    January Term, 1880,
    Richmond.
    1. Injury to Land by Overflow — Evidence. —In an action by E against H’s executor to recover damages for injury to his land by the overflowing and sobbing of his land lying on a stream on which H had built a dam in 1848, in the county of Eouisa, evidence of the effect of a dam in raising the bottom of the stream and overflowing the lands lying on the streams above the dams in the county of Albemarle is inadmissible.
    2. Same — Same—Experts.—A person who all his life had been familiar with the effect of a dam upon the channel of a stream, and who had twice superintended the putting up ...e dam, and was also familiar with the effect upon the channel of the stream when the dam was washed away by a flood, but „who was not a millwright or mechanic of any sort, but only a farmer and owner of the mill, is not competent to give evidence as an expert, as to . the effect of a dam upon a stream in another county thirty miles distant.
    3. Competency of Witnesses — Death oft Other Party. — H, who built the dam, being’) dead, the plaintiff E is not a competent witness to prove anything occurring in the lifetime of H,
    4. Same — Same—Executors.—The executor of H, though a part owner of the land on which •the mill was built, is a competent witness in the case.
    5. Damages — Second Suit. — E having sued H in nis lifetime for damages to his lands from the erection of the dam, and a judgment in that case having been rendered in 1859 in favor of H, in this second suit E can only recover for damages occasioned by the continuance of the dam subsequently.
    6. Same — Aftei'-Acipiiretil Land — Presumptions. — E may recover full damages for all the land owned by him at the time of the erection of the dam. But for land since acquired by him, he can only recover such damage as was not actually foreseen and estimated for by the jury when the dam was built; and the jury must presume that the jury of inquest and the county court did foresee and estimate for all damages whicn it was then practicable to foresee and estimate for.
    *This was an action on the case in the circuit court of Louisa county, brought in November, 1872. by Robert S. Ellis against Henry Harris’ ex’or, to recover damages for injury done to plaintiff’s land by a dam erected by Henry Harris in his lifetime across the North Anna river. There were several questions raised during the trial as to the competency of evidence and witnesses, all of which are fully set out in the opinion of the court delivered by Judge Mon-cure. After the evidence had been introduced, both the plaintiff and defendant asked for instructions, all of which the court refused to give, and gave the following:
    1. The jury are instructed that they are limited by the pleadings in this case to the enquiry whether any damages were sustained, and if so, how much, by the plaintiff’s lands, during the period between March the 1st, 1860, and August 18th, 1872, by reason of the continuance-of the dam erected by Henry Harris in 1848, and that in making such enquiry, they must be governed exclusively by the evidence in the cause.
    2. The plaintiff is entitled to recover the full amount of all such damages to the lands held by him at the time of the erection of the dam.
    3. The plaintiff is'not entitled to recover for any such damages to the land held by Mary Harris at the time of the inquest by the jury made on application of Henry Harris, unless such damage was not actually foreseen and estimated for by the jury, and in determining whether such damage was actually foreseen and estimated for, this jury must presume that the jury of inquest and the county court of Orange did foresee and estimate for all damages which it was then practicable to foresee and estimate for.
    4. But if the jury shall be of opinion that any such damage referred to in the last instruction was not actually foreseen and estimated for, the jury must determine the damages sustained by the said land from the date of the *erection of the dam to August 18th, 1872, and credit the defendant therein with the amount awarded by the court to Mary Harris, and they can only allow to the plaintiff for his damages to that land so much of the surplus, if any, as may be necessary to indemnify him for such damages as accrued between March 1st, 1860, and August 15th, 1872.
    There was a verdict and judgment for the defendant; and the plaintiff obtained a writ of error.
    The Attorney-General, for the appellant.
    J. V. Winston and Guy & Gilliam, for the appellee.
    
      
       Competency of Witnesses — Death of Other Party. — See also 4 Min. Inst. (2nd Ed.) 767 et seq.; 8 Am. & Eng. Enc. of Law (2nd Ed.) 717, 723.
    
   MONCURE, P.,

delivered the opinion of the court.

This is a writ of esror to a judgment of the circuit court of Louisa county, rendered on the 18th day of December, 1875, in an action of trespass on the case, brought by the plaintiff in error, Robert S. Ellis, against the defendant in error, Herbert Harris, executor of Henry Harris, deceased, on the 13th day of November, 1872.

The declaration contains four counts, in which it is variously charged that the said testator, Henry Harris, did unlawfully erect and make a certain dam or obstruction across a branch of the North Anna river, on which branch, above and adjoining the land of said testator, the plaintiff owned a tract of land, a part of which was overflowed and covered with water, in consequence of the said obstruction, so as to be'useless and unprofitable to the said plaintiff, and by the same means a large quantity of the low grounds of the plaintiff attached to his said tract of land were so much sobbed and saturated with water as to be wholly useless and unfit for cultivation; and that the said testator continued thereafter, during his lifetime and

unt'l his death, which happened on the 28th day of August, 1872, to keep *up the said dam or obstruction, which has ever since been and still is kept up, caus’ng the same damage as aforesaid to the plaintiff.

Many proceedings were had in the case, which need not be here mentioned. Others occurred, which are substantially as follows: On the 24th of March, 1875, the defendant plead not guilty, and not guilty in five years, to the plaintiff’s action; to which pleas the plaintiff replied generally, and issues were thus joined. On the 8th of December, 1875. a jury was sworn to try the said issues, and also another issue, which was joined on the plea of former judgment. The said jury was engaged in the trial of the said issues from day to day until the 18th of December, 1875, when they rendered a verdict for the defendant; on which the court gave judgment accordingly.

That is the judgment to which the writ of error in this case was awarded, and the assignments of error in it are founded on the decisions of the circuit court on questions which arose during the progress of the trial, which, and the decisions of the said court thereon, áre presented by the bills of exceptions which were taken during the trial, and made part of the record.

We will consider and dispose of these questions in the order in which they are presented by the said bills.

1. In the first of said bills it is stated that on the trial of the case, the plaintiff, to sustain the issue joined on his part, introduced testimony tending to show that portions of his land adjacent to the North Anna river, and lying above the mill dam erected across said river by defendant’s testator, were greatly injured by wetting and sobbing, owing to the want of drainage occasioned by gradual elevation of the bed of North Anna river, in and above the pond occasioned by the dam aforesaid. And then the plaintiff introduced William H. Southall as one of several witnesses summoned from the county of Albemarle, by whom he proposed to prove that in several instances in *said county the bed of the stream on which a mill dam was situated had gradually become filled up and elevated for a great distance above the head of the pond occasioned by the dam, so as to render the lands above the pond and adjacent to the stream incapable of drainage and unfit for cultivation; and that after the removal of the dam the bed of the stream had gradually been washed out and deepened, until it was restored to its normal condition, and the adjacent lands rendered capable of being drained; and that in fact they were easily drained and thoroughly reclaimed and restored to their former value. To the introduction of which testimony the defendant objected; and the court sustained the objection, and excluded the proposed testimony; to which ruling the plaintiff excepted.

The said testimony, we think, was clearly inadmissible, and was properly excluded. Tt was admitted by the counsel for the plaintiff in error, as was certainly the fact, that the witness Southall was not an expert, and the matters to which he testified were wholly' irrelevant to the issues. They might be true, and yet did not at all affect the questions in issue in this case. They concerned only certain mill dams and streams in Albemarle, and not the mill dam and stream in Louisa and Orange involved in this case. 1 Green-leaf’s Ev.. § 51, cited by the counsel for the appellee, seems to be conclusive upon this subject; where it is said that “it is an established rule, which we state as the first rule, governing in the production of evidence, that the evidence offered must correspond with the allegations, and be confined to the point in issue.” See note 1 thereto, § 52: “The reason is that such evidence tends to draw away the minds of the jurors from the point in issue, and to excite prejudice and mislead them; and moreover, the adverse party, having had no notice of such a course of evidence, is not prepared to rebut it.”

2. In the second of said bills it is stated that on the trial of the cause, after the plaintiff had introduced testimony ^tending to show that the lands of the plaintiff adjacent to the North Anna river, and lying immediately above the mill pond made by the dam across said river, erected by the defendant’s testator, had, since the erection of the said dam, and within the time specified in the declaration, become wet and sobbed, and useless for cultivation, and incapable of drainage, owing to the gradual rise of the bed of said river, occasioned by the mill dam and pond aforesaid. The plaintiff then introduced a* witness,-Jesse L. Maury, of the county of Albemarle, who proved that he was sixty-four years of age; that from the time of his earliest recollection his father had been a mill-owner, and that he, from his boyhood to the present time, had had something to do with the manaeement of said mill, to the ownership of which he succeeded on his father’s death, which occurred some years ago. and he now owns said mill. The witness further proved that the dam which supplied said mill with water had been twice taken down and new dams erected; that he, as agent and manager for his father, had superintended the work incident thereto; that he had such familiarity with mills and mill dams as had resulted from his attention to the mill aforesaid in his father’s lifetime, as already stated, and to the same mill as his own property since his father’s death, and from his having superintended for his father the erection of the two dams aforesaid, and that for many years he had observed the effects on the bed of the stream, and on the lands adjacent thereto and above the head of the pond, occasioned by the dam aforesaid; and that in addition to this experience, he was familiar with a null dam and pond, owned by another party, situated on the same stream, a mile or two below his mill, and for years had observed the effect of the said pond upon the lands on the stream above; and he also observed the effect upon the same lands of the removal of said dam caused by a freshet in 1870. The witness admitted that he was not by profession a millwright, or mechanic *of any other sort, but a farmer and mill-owner, and that in superintending the erection of the dams referred to by him he had merely carried out the plans of his father. Upon proof of these facts, plaintiff offered to prove by said-witness what had been the effect of all the dams referred to by him upon the lands above them, all of which lands and dams are h\ Albemarle county, about 30- miles from the dam of the, defendant; and further to examine said witness, as an expert, touching; the general influence and effects of dams upon the lands in and adjacent to the streams across which they are constructed; to the introduction of which testimony the defendant objected, and the court sustained the-objection and refused to allow the witness to be examined as aforesaid; to which ruling of the court the plaintiff excepted.

We think the testimony of this witness also was clearly inadmissible, and that it was certainly not admissible upon the ground of its being the testimony of an expert. As to the law upon this subject, reference was properly made, in the argument, to 3 Doug. 157; 26 E. C. L. R. 63, Folkes v. Chadd; also Livingston’s case, 14 Gratt. 592. See also 1 Greenleaf on Evidence. §§ 440. 440a, and notes; and notes on the subject of experts. To be satisfied that our conclusions on this branch of the subject are correct, it: can only be necessary to read the authorities here referred to.

3. In the third of said bills it is stated, that upon the trial of this case, the plaintiff, to maintain the issue joined on his part, offered himself as a witness to prove what has been the effect of the dam in question upon the stream above the said dam and upon his lands lying immediately along the banks of said stream; but the defendant objected to the plaintiff’s testifying, because the defendant’s testator, Henry Harris, who erected said dam, was dead, and moved the said court to exclude the said plaintiff as a witness; and the court, sustaining the motion of the defendant, excluded the said plaintiff from testifying as to all matters ’^connected with' said dam, except such as have arisen since the qualification of the defendant as executor of said Harris; to wmcfi opinion on the court the plaintiff excepted.

The question presented by this bill of exceptions is, whether, under the Code of 1873, ch. 172, §§ 21 and 22, the testimony mentioned in the said bill was properly excluded as therein mentioned.

This court is of opinion that it was, according to the express terms and the true intent and meaning of the statute, aforesaid, which need not be repeated here. That such is the case, we think, is clearly and fully shown by the cases of Mason & als. v. Wood, 27 Gratt. 783; Grigsby & als. v. Simpson's ass’ee, &c., 28 Id. 348. and Morris’ ex’or v. Grubb, 30 Id. 286; in each of which cases there was a full court at the time of its decision, and the court was unanimous. The prior case of Field v. Brown & al., 24 Id. 74, if in conflict with the three subsequent cases aforesaid, is overruled by them. Judge Anderson says of that case, in delivering the opinion of the court in Mason & als. v. Wood, supra, that “this opinion may seem to conflict with the decision of this court in Field v. Brown & als., 24 Gratt. 74; but the cases are not analagous. In that case the general competency of the party to testify seemed not to be questioned; but was in fact recognized by the court below, and seems to have been acquiesced in by both parties; and the only point made before this^ourt was as to the admissibility of some of the questions and answers of the party, whose deposition had been given de bene esse. There was no objection made to his general competency, and the question was not raised in this court, nor seems to have been considered by it. In this case it is for the first time pointedly and squarely raised, and ha§ to be met; and the court is of opinion, for the reasons given, that there is no error in the ruling of the circuit court, refusing to admit Leach and Earle, parties in the suit, to testify.”

See also on by Judge Christian *in delivering the opinion of this court in Grigsby & als. v. Simpson’s ass’ee, &c., supra, where the authorities on the subject are reviewed, and, among other things having an important bearing upon this case, it is said: “The plain purpose of the legislature was, to declare that where the lips of one party to the_ original contract or transaction, which is the subject of investigation, are. closed in death, the adverse party shall-not speak at all.”

4. In the fourth of the said bills it is stated that'upon the trial of this case the defendant, H. H. Harris, to maintain the issue joined on his part, offered himself as a witness to testify in the case; to which the plaintiff objected, upon the ground that saicl H, H. Harris was the defendant in the suit and part owner of the said dam, and because the plaintiff, R. S. Ellis, was incompetent to testify, and had been excluded as a witness in the case, as set out in the 'bill of exceptions No. 3, which is to be taken as a part of this bill. But the court overruled the motion of the plaintiff, and allowed the said H. H. Harris to testify as a witness without restriction; to which opinion of the court the plaintiff excepted.

No notice is taken of the said 4th bill of exceptions in the petition for a writ of error in this case; no doubt because little or no reliance was placed upon it by the petitioner. But the case of Martz’s ex’or v. Martz’s heirs. 25 Gratt. 361, conclusively shows that Harris, the administrator, was not a party to the transaction, in the meaning of § 22 of ch. 172 of the Code, and therefore he was a competent witness in the case under § 21 of the same chapter, not being made incompetent by his being a party to the suit. There is no error in the opinion of the court referred to in the said bill of exceptions; which plainly appears, without the necessity of assigning any other reason for this conclusion than as aforesaid.

5. The only remaining question in this case is, as to the correctness of the action of the court in regard to the instructions *asked for by the plaintiff and 'defendant respectively, all of which were refused by the_court, and the instructions which were given by the court in lieu of those asked for and refused as aforesaid. Whatever error, if any, there may have been in the refusal of the court to give the three instructions asked for by the plaintiff or either of them, it was cured and removed by the instructions actually given by the court; in which instructions there was no error at all, so far as the plaintiff was concerned, and none to the prejudice of. the defendant. Whether the court erred in refusing to give the instructions asked for by the defendant as aforesaid or any of them, is a question which need not be, and therefore is not, decided, as the defendant cannot be prejudiced by any such error, the decision of the case being in his favor.

Upon the whole the court is of opinion that there is no error in the judgment of the court below, which must therefore be affirmed.

The cause of action in this case was the recovery of damages claimed to have arisen from the erection of a dam in 1848, more than 24 years before the institution of this suit in 1872. There was a regular enquiry and report as to the existence of any such damages before the order was made for the erection of the said dam, and it was then reported, that _ no such damages existed. In 1856. an action of trespass on the case was brought by the plaintiff against the testator of the defendant to recover the damages claimed to have arisen as aforesaid. In that action issues were joined on pleas of not guilty and the statute of limitations; which issues were tried by a jury on the 7th day of October, 1859, when a verdict was found thereon for the defendant, on which verdict a judgment was on the same day rendered for the defendant.

More than thirteen years after the rendition of that judgment this action was brought for the same cause, in *which action, as we have seen, not guilty and the statute of limitations were again pleaded, and again verdict and judgment were rendered in favor of the defendant.

We think the case is plainly in his favor.

Judgment affirmed.  