Merritt v. Parker

Merritt v. Parker - MERRITT v. PARKER. [NO NUMBER IN...

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{ PAGE | 1 } MERRITT v. PARKER. [NO NUMBER IN ORIGINAL] SUPREME COURT OF NEW JERSEY 1 N.J.L. 526; 1795 N.J. LEXIS 46 August, 1795, Decided PRIOR HISTORY: [**1] This was an action on the case, brought to recover damages sustained by the plaintiff in consequence of obstructions raised in a water course. The cause was tried at the Burlington Nisi Prius, in August, 1795, before KINSEY, C. J., and SMITH, J. The declaration stated that the plaintiff, on the 1st of October, 1793, was seized and possessed of a newly erected sawmill, with its appurtenances, in the township of Northampton, situated on the soil and freehold of the plaintiff, adjoining to a certain stream or rivulet, running and flowing to this sawmill, of which stream of water he was entitled to, and ought to have the use, for the purpose of turning his mill; that the defendant, on the 1st of October aforesaid, and at divers times between that day and the 1st of August, 1794, by means of dams, &c., stopped a great part of the water from running in this its accustomed course, so as to prevent the working of the sawmill, by which the plaintiff was deprived of the use of it, &c., &c. To this declaration the defendant pleaded not guilty. On the trial, it appeared by the evidence, in addition to what was stated in the declaration, that Merritt owned lands upon both sides of [**2] the north branch of the Rancocas creek, which is a public highway; that Parker also owned land below Merritt, on the same stream, and had for many years a mill upon the stream, and under the authority of the legislature, had erected a dam across the creek, for the purpose of obtaining a head of water sufficient to turn his mill. It further appeared that Merritt, in the spring of the year 1793, cut a small trench from the creek, through his own land, by which he conducted a portion of the water into a small natural rivulet, which ran through his farm, and which, in consequence of this additional supply of water, was sufficient to turn the sawmill which he had erected. This rivulet emptied itself through a small neck of Parker's land, and fell into the main creek below Parker's mill. One of the witnesses who was brought forward was one John Mullen, who, being sworn on his voir dire, declared he had no interest in the suit, and should not be affected however it might terminate. He stated, however, that he was the lessee of Parker's mill, but Parker was to indemnify him against any injury which he might sustain from Merritt's mill. The court declared he could not be permitted to
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{ PAGE | 1 } give [**3] evidence upon the question whether there was sufficient water to turn both mills, but allowed him to prove other matters which did not affect his interest or possession. a a It is presumed that the rule of evidence adopted by the court is now altogether exploded, and that if a witness is not interested in the event of the suit, he is competent; the interest in the question goes only to his credit. See Bent v. Baker, 3 T. R. 27, particularly the opinion of Mr. Justice
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Merritt v. Parker - MERRITT v. PARKER. [NO NUMBER IN...

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