Norris v. Glenn

• Decision Date: 01 January 1875
• Citation: 1 Idaho 590
• Parties: Thomas Norris, Respondent, v. J. D. Glenn Et Al., Appellants.
• Court: Idaho Supreme Court

1 Idaho 590

Thomas Norris, Respondent, v. J. D. Glenn Et Al., Appellants.

Supreme Court of Idaho

January 1, 1875

DAMAGES-POSSESSION OF LAND.-The lawful possession of land is all that is required to enable a plaintiff to recover damages for building a dam across a watercourse running through such land, by reason whereof the water is thrown back upon the land of plaintiff.

PRACTICE-ANSWER-PLEADINGS-DENIALS.-A denial of the literal truth of the allegations of a complaint, and not a denial of every specific averment in it is evasive. A failure to deny, specifically, each and every material allegation of a verified complaint, admits the allegations not so denied.

APPEAL from the District Court of the Second Judicial District, Ada County.

J Brumback, for the Appellants. Prickett & Hasbrouck, for the Respondent.

WHITSON J.,

delivered the opinion.

HOLLISTER, J., concurred.

This is an action in which the plaintiff alleges in his complaint that he was in the lawful possession of certain lots of land therein described, through which ran a certain watercourse from Boise river, and that the defendants built a dam across said watercourse, a little below the plaintiff's land whereby a backwater was caused that hindered a free course of the water through said watercourse, and caused the waters thereof to flow back on and over the land of the plaintiff, by reason of which he was damaged generally in the sum of one thousand

dollars, and specially in the sum of four hundred and fifty dollars.

The defendants deny that they built a dam across any watercourse running through plaintiff's land, as described in his complaint, a little below plaintiff's land, or at any other place; deny that by any dam or obstruction of any kind, they caused a backwater that hindered a free course of any water through plaintiff's land, or caused any waters to flow back, on or over plaintiff's land or any part of it, and deny that plaintiff has been damaged in any sum whatever, either generally or specially. A jury trial was had, and a verdict for plaintiff for two hundred dollars, upon which judgment was entered accordingly, from which defendants appeal to this court, and allege as errors:

1. The complaint does not state a cause of action in this, that the simple allegation of possession is not sufficient to sustain the action.

2. The court erred in refusing to give a certain instruction asked by defendant, set forth...