Brown v. Smith

Opinion — Baldwin

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

This case is an action for the diversion of water. It seems to have been closely contested on the facts, and the proof was conflicting. The jury, after hearing all the testimony, found for the defendant.

This is precisely one of those suits which a jury of the vicinage are best qualified to try, and they seem to have tried it fairly, under the direction of a Judge entirely familiar with this class of litigation, and who refused the application for a new trial.

This Court would require a case of very palpable mistake or error to be made out, before it overruled the verdict of the jury on issue of fact joined in such an action; and, certainly, no such case seems to be made by this record.

We think the Court below did not err in the instructions given. The seventh and eighth, given at the instance of the defendant, are the only ones which appear to be assailed with much confidence. And these, when considered in connection with the peculiar facts of this case, we think correctly state the law.

The motion for a new trial, founded on the plaintiff’s affidavit of surprise, was correctly overruled. The reasons given in the written opinion of the Judge below, to be found in the record, are conclusive upon this subject.

Judgment affirmed.