#### Smith and others v. Russ, impleaded, etc.

*Evidence.*— Bill *of Exceptions*— Reversal *of Judgment.*

1. In -an action for the flowage of land, testimony as to the amount of grass per acre cut on the land of a witness, its relation to that of plaintiff not being shown, *held*irrelevant.

2. Where evidence improperly admitted is of little weight compared with the rest of the proof, which clearly justifies the verdict, a new trial will not be granted.

3. But where, after a new trial is denied, the objectionable evidence is preserved by bill of exceptions, which omits the evidence (if any) showing that the verdict must have been as it was, if the former had been rejected, the judgment must be reversed.

APPEAL from the Circuit Court for *Jefferson*County.

Action for the flowage of land by a mill-dam. Yerdict for plaintiff; new trial denied; and defendant appeals from a judgment on the verdict.

*440
      *Cary £ Pratt,*for appellant.

*Levi ilubbell,*for respondent.

Dixon, C. J.

The other exceptions might perhaps he . overruled, hut there is one on which I think the judgment must he reversed, and a new trial had. It is with, the greatest reluctance that I have come to this conclusion. Knowing the history of this litigation, the length of time it has been pending, the number of trials had, and the great expense attending each trial; and knowing also the difficulty which the ablest and most vigilant counsel frequently experience, in sharply contested cases, in preventing irrelevant or improper testimony from creeping in, I have felt that after the last full and elaborate trial, the judgment should, if possible, be affirmed, and the controversy terminated. I regret that it cannot be so, consistently with what I conceive to be correct principles of law applicable to the case. The exception to which I refer, is that to the admission of testimony by the witness Stratton, who, against the objection of the defendants, was permitted to testify to the quantity of grass per acre cut upon his (witness’) land, “ on Fox river, near Putnam’s land,” in the years 1850., 1851, 1852 and 1858. He was in like manner permitted to give evidence of what one "Wilkins, to whom he (the witness) had let a portion of the' same land, had said about the quantity of grass cut by Wilkins on the land. This testimony was' in part hearsay, and wholly irrelevant. There is nothing in the record to show the nature and situation of Stratton’s land, whether it was near to or remote from the lands of the plaintiffs, or more or less valuable as grass land, or whether it was so situated upon the river as that it was .likely to be injured in the same manner or to the like extent as the lands of the plaintiffs by the back-water from the defendant’s dam. Without these or some such facts being *441shown, it is obvious that tbe testimony was totally irrelevant, and tbat it tended, or may bave tended, seriously to mislead tbe jury on tbe main question of damages involved in tbe case.

Row the rule, and, as I tbink, the correct rule, in regard to the granting or refusing of a new trial for the admission of irrelevant or improper evidence, is this: "Where the exceptionable evidence is of little weight compared with the rest of the proof, and the latter clearly justifies' the finding of the jury, a new trial will not be granted; but it must in all cases appear very satisfactorily tbat the verdict must and ought to bave been the same whether the questionable evidence was admitted or not. *Ellis v. Short,*21 Pick., 142; *Thompson v. Lathrop,*id., 336. In this case the other evidence is not preserved, so tbat we cannot say what the verdict must or ought to bave been without the testimony which was improperly admitted.

I tbink, therefore, tbat tbe judgment must be reversed, and a *venire de novo*awarded.

*By the Court.*— Ordered accordingly.