Wilson’s Red Book, 242
Supreme Court of Delaware, Sussex County.
October, 1799.
JOHNS, C. J., CLAYTON and COOPER, JJ.
Case for continuation of a nuisance. Narratio, that plaintiff was seised in his demise as of fee of and in a tract of land in Dagsborough Hundred called “Mill Angle,” containing ten acres, through which tract a stream of water on the day aforesaid and continually until the obstruction etc. had been used and accustomed to run to the benefit of plaintiff, on which stream etc. the plaintiff had and still has a mill etc. and also across the water a dam etc.; and whereas a certain Elisha Dickerson, late deceased, lately the husband of Elizabeth H., now the wife of the said defendant, on etc., being seised of a tract of land situate on India River, into which the aforesaid stream falls and descends and below the said Mill Angle and grist mill and milldam of the plaintiff on etc. at etc. erected a dam etc. across etc. below etc., and the said stream did then and there stop so that it could not descend as before it was used, by reason whereof five acres, part of Mill Angle, were overflowed etc., the said grist mill of the said plaintiff obstructed, and the said plaintiff on the etc. lost the use of the said five acres and his grist mill. And also whereas the said E. D. afterwards, to wit etc., died, and the said Elizabeth H., lately the wife etc., from his death until the celebration of the marriage etc. continually had and occupied the said land, late of the said E. D. and the dam etc., so as aforesaid made by the said E. D. across etc. And whereas afterwards, to wit etc., the said defendant intermarried with the said Elizabeth H. at etc., lately the wife etc., while the said Elizabeth occupied etc., and from the said day etc. he, the said defendant, hath had and continually occupied the said tract, dam etc., yet the said defendant well knowing the premises but contriving etc. to injure the plaintiff and to deprive him of the use and benefit etc. of the said mill
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and five acres, the aforesaid dam etc. so erected by E. D. across etc. did there maintain and continue from etc. until the day of suing out the original writ in this cause by the plaintiff against the defendant, to wit etc. And the said plaintiff, in fact, such that by reason of the maintaining etc. by the defendant the said dam so made by E. D. across etc. below etc. five acres of land, parcel of Mill Angle, were overflowed etc., and the said water grist mill of the plaintiff was obstructed and hindered from working, to wit on etc., and the said five acres parcel etc. so continued overflowed etc., and the said water grist mill so continued obstructed etc. from etc. until etc. whereby the said plaintiff during all the time last mentioned hath totally lost etc. the use etc. of the said five acres’ etc., the use of the water grist mill, to his damage £500, and thereupon etc. Issue Non culpa.
Ridgely and Bayard for plaintiff. Peery, Vining and Wilson for defendant.
Plaintiff claimed the stream by patent for ten acres, called Mill Angle, granted Joshua Burton, who died intestate; his eldest, William, inherited, who died intestate, leaving a widow, now wife of Woolsey Burton and a daughter, Comfort; plaintiff, son of Woolsey and half brother of Comfort, was born June 25, 1775. Comfort died September 25, 1776. To prove the above pedigree, Woolsey Burton was called.
Defendant’s counsel objected to his competency; pedigree itself cannot ever be proved by witnesses evidently interested. Woolsey Burton manages this cause, is plaintiff’s father and agent, and is liable for costs; besides he is, by plaintiff’s statement of his title, interested as tenant in dower, his wife being now living, and if dower is not actually laid off to her, he has a joint actual possession with plaintiff.
Plaintiff’s counsel. Interest is not material in the mere proof of pedigree. Witness’s attention to the cause does not make him liable for costs, and if even an agent or factor that would not disqualify him; it does not appear any person is in possession actually, but if witness was possessed or tenant in dower, a verdict in this cause would not affect him; he would gain nothing; nor could he lose by it.
PER CURIAM. JOHNS, C. J.
There are two objections: first, that the witness is principally active; on this we see nothing extraordinary or tending to disqualify him. Secondly, that he is interested as tenant in dower; we think this is not an interest in this cause, but that his evidence will operate against his interest.
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Plaintiff produced James Clayton to prove offers of Elisha Dickerson of compensation for damage and his declarations relative to the nuisance.
Wilson. What a party has been heard to say is evidence against him; but the declarations of an ancestor or predecessor in estate are not evidence against those who claim under him except when it regards boundary, parcel, or pedigree. The rule that hearsay is not to be admitted operates against this evidence, for the exception as to what a party has been heard to say will not authorize that which is now offered. This action, though not founded on a tort, yet is so entirely personal that defendant’s wife is not joined with [him], though he claims only through her. It allows no privity of estate, it is founded on a misfeasance, and therefore defendant is not to smart for the declarations of E. Dickerson. The evidence is not on oath and not of such a nature that defendant can be supposed to know it or be prepared against it.
Ridgely. E. Dickerson erected the nuisance; this is a fact to be proved, and certainly his declarations and confessions must be the best evidence of it.
PER CURIAM. JOHNS, C. J. We are of opinion that no declarations of E. Dickerson as to the question of damage or the amount of it ought to be given in evidence against defendant. But as to his erection of the nuisance, you may prove his declarations.
The witness was not sworn.
Verdict, not guilty.