Thompson v. Lee

Burnett, J., delivered the opinion of the Court—Terry, C. J., concurring. The complaint alleges in substance, that in March, 1852, Higgins and Smith posted a notice on North Slate Creek, claiming the waters of the stream, and of all ravines that might be crossed by a ditch from that point to Gibsonville, "where the water was to be used for mining purposes; that surveys were made, and the ditch partly dug by the parties through "whom the plaintiffs claim, and that the ditch was finally finished by plaintiffs; that the predecessors of plaintiffs had appropriated the waters of “ Third Ravine,” a ravine crossed by the ditch, and that the defendants had wrongfully diverted the waters of the north branch of North Slate Creek, and also of Third Ravine from plaintiffs’ ditch. The defendants in their answer, deny that plaintiffs posted the notice, or made the surveys as alleged. They also deny, in general terms, that plaintiffs, by any act of theirs ever acquired any right to the waters of the north branch of North Slate Creek, and affirm that the right to the use of the water of said branch is in them. They also deny that they ever diverted the waters of Third Ravine from the ditch of plaintiffs. The complaint and answer were both verified.

The object of the plaintiffs in setting out the facts of their ease in detail, was, doubtless, to avoid the expense and trouble of proving specific facts, which the defendants could not specifically deny. The only material issue made by the specific denials of the. answer, is that concerning the diversion of the waters of Third Ravine. The denial that plaintiffs posted the notice and made the surveys amounted to nothing, tor the reason, [280]that no affirmative allegation to that effect had been made in the complaint. The answer was' not responsive to the allegations of the complaint in these particulars, and made no issue. See the case of Dewey v. Bowman et al., decided at the present term.

All the material allegations of the complaint which were not denied in the answer, were admitted as true. And as the verdict of the jury was for the plaintiffs, and no motion was made for a new trial, the only errors assigned have reference to the action of the Court in refusing certain instructions offered by the defendants, and in giving others in lieu of them.

The defendants offered, in all, eleven instructions, the third and fourth of which were given, and the others refused. The instructions refused by the Court, except the fifth, were not admissible under the pleadings. The plaintiffs Jaaving alleged certain specific facts, which taken together, made out a prima facie ease, as to their right to the waters of Slate Creek, and these facts not being denied, the onus of the proof was thrown upon the defendants, to sustain their affirmative allegations, that they were the first appropriators of the waters of the north branch of the stream.