Dugger v. Young

• Decision Date: 02 February 1920
• Docket Number: No. 2252.,2252.
• Citation: 187 P. 552,25 N.M. 671
• Parties: DUGGERv.YOUNG et al.
• Court: New Mexico Supreme Court

25 N.M. 671

187 P. 552

DUGGER

v.YOUNG et al.

No. 2252.

Supreme Court of New Mexico.

Feb. 2, 1920.

Syllabus by the Court.

Where the answer denies material allegations in the complaint and an issue of fact is raised, it is error to grant a motion for judgment on the pleadings.

Error to District Court, Lincoln County; Medler, Judge.

Condemnation proceedings by Hal Young and another against Waverly G. Dugger. Judgment for plaintiffs, and defendant brings error. Reversed, with instructions.

Where the answer denies material allegation in the complaint and an issue of fact is raised, it is error to grant a motion for judgment on the pleadings.

H. B. Hamilton, of Carrizozo, and Francis C. Wilson and Daniel K. Sadler, both of Santa Fé, for plaintiff in error.

G. B. Barber, of Carrizozo, for defendants in error.

RAYNOLDS, J.

This case is before the court for the second time. The first decision is reported under title of Young v. Dugger, 23 N. M. 613, 170 Pac. 61, where a judgment dismissing the plaintiffs' and appellants' complaint was reversed and the case remanded. In the former appeal the plaintiffs alleged, among other things, that their application to appropriate waters had been approved by the state engineer. A motion was filed to make the complaint more definite and certain, and the motion was sustained by the trial court on the ground that the appropriation of the water was shown to be for a private and not a public use. The plaintiffs then refused to plead further and judgment was entered dismissing the complaint. From this judgment, the first appeal was taken, and this court reversed the case on the ground that under the decision of City of Albuquerque v. Garcia, 17 N. M. 448, 130 Pac. 118, the use of water for irrigation purposes constitutes a public use; and the court further held that, by the allegations of the approval of the state engineer of plaintiffs' application to appropriate water, they had acquired the right to divert the waters in question to the extent granted by the state engineer, said engineer being the officer in control of these matters. See Young et al. v. Dugger, 23 N. M. 613, at 615 and 616, 170 Pac. 61.

On the second trial below the plaintiffs alleged, among other things:

“That they were the owners of 480 acres of desert land; that they own a certain irrigation ditch; that plaintiffs have made an appropriation of water in the Nogal creek to supply water for irrigation, which said appropriation has been allowed and approved by the state engineer; and that the irrigation ditch has been recently completed at a cost to plaintiffs of $695.”

Defendant in his answer alleges that “he is not possessed with sufficient information on which to admit” these allegations, “and therefore denies the said allegations and demands strict proof of the same.”

Plaintiff then moved for the appointment of three commissioners to assess the damages due defendant for the condemnation of his land, and at the same time moved to strike defendant's answer from the files. The court overruled the motion to strike the answer from the files, but granted the motion to appoint commissioners. Plaintiffs then moved the court for judgment on the pleadings, and defendant at the same time asked leave to take evidence in support of the allegations in his answer. The court granted the motion for judgment on the pleadings and denied the defendant the right to introduce evidence in support of his answer....