New River Mineral Co v. Painter

Decision Date12 September 1902
Citation42 S.E. 300,100 Va. 507
CourtVirginia Supreme Court


1. Where, before a motion to quash the return of the sheriff upon a process, defendant had appeared and consented to the continuance of the case, it was a waiver of any objection to the return.

2. Where the declaration was for damages resulting from the negligent doing of a lawful act, an amendment, after an appearance claim-ing that the damages were caused by the committing of the same act, but alleging it to be unlawful, was not a setting up of a new cause of action, or a bringing into the case of a substantive cause of action different from that originally declared upon.

3. Where, in an action for injury to land, plaintiff testified that a sketch made by him of the premises was substantially correct as to the location of plaintiff's dwelling house and store, and the street laid out upon it, its introduction could not have harmed defendant, especially where it afterwards introduced a map made by one of its witnesses, and examined him upon it.

4. Evidence is admissible to identify the particular property mentioned in a deed.

¶ 4. See Evidence, vol. 20, Cent. Dig. § 2118.

5. The construction of a deed and a written agreement is for the court and not for the jury.

6. Plaintiff granted to defendant a perpetual right to the free use of a certain spring branch, running through plaintiff's property, for the purpose of washing iron and other ores, and released defendant from all damages which might be sustained by such use of the water, whether they arose from the pollution of the water, or from its overflowing on lands of the grantor, or from any other use of the water. By a later agreement, plaintiff covenanted with defendant that it could lay troughs through certain lots for the purpose of carrying off the water and refuse material. Held not to give the defendant the right to pump water from other streams, —one of them many times as large as the water right given, —and to turn those added waters from the channel of, or over the land adjacent to, the stream, the use of which was granted, without any liability to the plaintiff because of the release of all claim of damages in the deed.

Error to hustings court of Radford.

Action by William M. Painter against the New River Mineral Company. Judgment for plaintiff. Defendant brings error. Affirmed.

Blair & Blair and M. M. Caldwell, for plaintiff in error.

J. C. Wysor and Longley & Jordan, for defendant in error.

BUCHANAN, J. William M. Painter instituted his action of trespass on the case to recover damages for injuries to his property resulting from an overflow of water, sediment, and mud thrown upon his premises by the New River Mineral Company.

1. The refusal of the court to quash the return of the sheriff upon the process issued upon the amended declaration is the first error assigned. Before the defendant made its motion to quash, it had appeared and consented to a continuance of the case. Objections which do not go to the substance of an action are treated as waived if not made when the occasion for them arises. It is a well-established rule of practice that by appearing to the action the defendant waives all defects in the process and in the service thereof. The decisions go further, and imply such a waiver from the defendant's taking or consenting to a continuance as fully as they do from his pleading to the action. The object of the writ is to apprise the defendant of the nature of the proceeding against him. His taking or agreeing to a continuance is evi dence of his having made himself a party to the record, and of his having recognized the case as in court. It is too late for him afterwards to say that he has not been regularly brought into court. Harvey v. Skipwith, 16 Grat. 410, 414; 5 Rob. Prac. 101, 103.

2. The defendant moved the court to strike out the amended declaration upon the ground that it made an entirely new case from that stated in the original declaration, in this: that it charged the defendant with doing an unlawful act, whilst the original declaration charged it with doing a lawful act negligently. Upon the court overruling this motion, the defendant demurred to the amended declaration, and each count thereof, upon the same ground, which was also overruled. The action of the court both in overruling the motion to strike out and in refusing to sustain the demurrer is assigned as error:

If it were conceded that the case made by the original declaration was for damages resulting from the negligent doing of a lawful act, and that made by the amendment or amended declaration was for damages caused by the doing of the same act which was alleged to be unlawful, the rulings of the court both upon the motion to strike out and upon the demurrer were correct.

Counsel have not cited, nor have we in our investigation found, any decision of this court which indicates what amendments of the declaration the court may allow after appearance; but there are many decisions upon the question in other jurisdictions. The rule generally prevailing seems to be that such amendments will be permitted as have for their object the trial and determination of the subject-matter of the controversy upon which the action was originally based, but amendments will not be allowed which bring into the case a new and substantive cause of action, different from that declared on, and different from that which the plaintiff intended to assert when he instituted his action. If the plaintiff in the amended declaration is attempting to assert rights and to enforce claims arising out of the same transaction, act, agreement, or obligation, however great may be the difference in the form of liability as contained in the amended from that stated in the original declaration, it will not be regarded as for a new cause of action. In such cases the original and amended declarations, and the count or counts in each, are regarded as variations in the form of liability to meet the possible scope and varying phases of the testimony, which is one of the very objects and purposes of adding several counts and of making amendments to a declaration. Snyder v. Harper, 24 W. Va. 206, 211; Smith v. Palmer, 6 Cush. 513, 519; Yost v. Ely, 23 Pa. 327, 331.

The injuries complained of in the original and in the amended declaration in this case were the same. The form of action was not changed. The amendment only varied themode of demanding the same thing; that is, damages done the same property by the same causes.

3. The plaintiff was permitted, over the defendant's objection, to introduce in...

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    • United States
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    • July 19, 2018
    ...personal service of process, and confers jurisdiction of the person on the court.’ " (citation omitted) ); New River Mineral Co. v. Painter , 100 Va. 507, 509, 42 S.E. 300, 301 (1902) ("It is a well-established rule of practice that by appearing to the action the defendant waives all defect......
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    ...the assumption of such inconsistent positions. 10 R. C. L. 968, 969; Lile's Equity Pleading & Practice, § 123; New River, etc., Co. v. Painter, 100 Va. 507, 42 S. E. 300; Bowman v. First National Bank. 115 Va. 463, SO S. E. 95; Irvine v. Barrett, 119 Va. 587, 89 S. E. 904, Ann. Cas. 1917C, ......
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    ...assumption of such inconsistent positions. 10 R.C.L. pages 968, 969. Lile's Equity Pleading & Practice, section 123; New River, etc., Co. Painter, 100 Va. 507, 42 S.E. 300; Bowman First National Bank, 115 Va. 463, 80 S.E. 95; Irvine Barrett, 119 Va. 587, 89 S.E. 904, Ann. Cas. 1917C, 62; Bu......
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    ...of the ground of action set up in the amendment, and this is a sufficient test of the character of the amendment. In New River Min. Co. v. Painter, 100 Va. 507, 42 S. E. 300, which has been consistently followed in this court, it is said: "If an amended declaration assert rights or claims a......
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