Where the record shows on appeal that the trial court had before it testimony, or documentary evidence, not presented to the appellate court, and which could have affected the result, it is well settled that the judgment or decree will not be reviewed or disturbed on appeal. The precedents are numerous, and the more recent of them are cited in the minority opinion of Mr. Justice McCLELLAN.
However, it has never been held in this state that the mere fact of a view of premises by judge or jury is a bar to review of the judgment on its conclusions of fact.
We think the correct rule in such cases was stated by Shaw, C. J., in Davis v. Jenny, 1 Metc. (Mass.) 222 (denying the proposition that a court cannot set aside a verdict based upon inspection):
"The authority of a court to set aside a verdict does not depend upon the nature and quality of the evidence, upon which the jury have found it; though it often happens that the character of the evidence is such as to afford the jury much better means of judging of it than the court can have of reviewing it; as where much depends upon localities, and the jury have a view. * * * In all such cases, the consideration that the jury had means of judging of facts which cannot afterwards be laid before the court, in their complete strength and fulness, will always have a prevailing and often a decisive influence upon the judgment of the court in support of the verdict."
It will often happen that a view of premises cannot, from the nature of the case, or upon the admitted facts, have any bearing whatever upon the primary rights at issue, though it may affect subsidiary questions, as, for example, particular items of damage and the extent of the injury, if any. Certainly, in the case of a bill to foreclose a mortgage or a vendor's lien on land, a view of the land by the chancellor, whatever he might see, would have no bearing on a decree granting or denying relief.
It is to be observed also that, although a view of premises may be relevant to the determination of the primary rights at issue, the right to a review of the judgment on appeal ought not to be denied to the parties; otherwise, the right of appeal on issues of fact could be effectually destroyed by the mere act of the trial court in directing a view by the jury, or in taking a view by the judge, which can be done at the court's discretion, without the request or assent of either party. 38 Cyc. 1313, J; U.S.C. I. Pipe, etc., Co. v. Granger, 172 Ala. 546,55 So. 244.
The decree which is presented for review contains the following statements and explanations:
"On consideration I am of the opinion that the damage suffered by complainant by reason of the obstruction of said streets would be the difference between the value of the property of complainant before the erection of said obstructions, and the value of the same after their erection. This being true, complainant has a complete and adequate remedy at law, and may bring his suit in the law court and recover judgment therefor.
"After a review of the evidence, and also after inspecting this property at the request of the parties, I am of the opinion that the water flow has not been diverted from its natural *Page 367 course by reason of the acts complained of, and that complainant is not entitled to recover therefor."
Upon these considerations the bill of complaint was dismissed.
It thus appears that the only question affected by the trial judge's view of the premises was with respect to complainant's damage by reason of a diversion of the flow of rainwater from its natural courses. This finding, made upon actual view, ought not to and will not be disturbed by this court. But the decree concedes that complainant has suffered damage by reason of the obstruction of the street, so that complainant's right to relief is in no wise affected by the denial of the other element of damage, since any element of damage will suffice for the equity of the bill, so far as damage is concerned.
Manifestly, then, the questions to be reviewed are: (1) One of law, viz., whether the mere fact that complainant may recover damages at law as compensation for the diminished value of its property defeats its right to equitable relief by injunction for the removal of the obstruction; and (2) one of judicial policy, viz., whether, conceding the abstract equity of the bill for injunctive relief against a public nuisance, the court was nevertheless justified, in the exercise of a sound judicial discretion, in denying the writ under the particular circumstances and conditions here exhibited.
A majority of the court, consisting of Justices SAYRE, MAYFIELD, GARDNER, and the writer, are of the opinion that these questions are open to review on this appeal.