Upon the appeal from the action of the court in denying a new trial for verdict against evidence, I think there is no error. It seems to me easy to see that the jury might honestly have reached their conclusion from the testimony and the inferences they could properly draw from the facts in the case and the appearance of the witnesses, and that certainly there is no such palpable disregard of the evidence as justifies an inference of corruption, prejudice or partiality in the jury.
As to the other appeal, there is no occasion to correct the finding; it recites the state of evidence sufficiently to fairly present the questions of law made in reference to the charge.
The trial court did not err in sustaining the demurrer to the second defense. The facts stated in that defense are alleged for the purpose of supporting a claim for a judgment reforming the contract and for an injunction, and for no other purpose. It is evident the facts do not support the claim.
The charge of the court, however, did not properly instruct the jury, in view of the state of evidence and claims of parties as recited in the finding. It is not clear as to the legal effect of a failure to remove the obstructions upon request of the plaintiff; is open to the inference that conduct of the defendants might be equivalent to a prohibition to remove, if the plaintiff regarded it in that light, although insufficient to reasonably justify such opinion; and leaves the question of maintenance of obstructions to the jury, as a question of fact, so loosely, that they might well be confused as to the rights and obligations of the parties, which are pure questions of law. Error is well assigned upon the instructions given, and for this reason a new trial should be ordered. *Page 635