David Josiah Brewer

“ Indeed, the very argument of counsel for plaintiff in error is an admission that up to a certain extent those statutes are undoubtedly valid. That argument is practically that, when the specific findings are returned, and found to be conflicting with the general verdict, the court is authorized to grant a new trial, but can do no more. But why should the power of the court be thus limited? If the facts, as specially found, compel a judgment in one way, why should not the court be permitted to apply the law to the facts as thus found? It certainly does so when a special verdict is returned. ”

“ When a general verdict is returned, and the court determines that the jury have either misinterpreted or misapplied the law, the only remedy is the award of a new trial, because the constitutional provision forbids it to find the facts. But when the facts are found, and it is obvious from the inconsistency between the facts as found and the general verdict that in the latter the jury have misinterpreted or misapplied the law, what constitutional mandate requires that all should be set aside, and a new inquiry made of another jury? ”

“ Does a lower landowner, by erecting embankments, or otherwise preventing the flow of surface water onto his premises, render himself liable to an upper landowner for damages caused by the stopping of such flow? In this respect the civil and common law are different, and the rules of the two laws have been recognized in different states of the Union; some accepting the doctrine of the civil law, that the lower premises are subservient to the higher, and that the latter have a qualified easement in respect to the former,-an easement which gives the right to discharge all surface water upon them. ”