Brownlee v. Warmack

Simmons, Justice. . Warmack had a right, under a deed, to obtain water to run his mill from a spring on the land of Brownlee. Brownlee was about to cut certain ditches above and [777] around the spring, which would cut off the flow into the spring and thereby lessen the supply to the mill and render the mill useless and worthless. Warmack filed his petition alleging these facts, and prayed for an injunction to restrain Brownlee from cutting the ditches. Brownlee answered the petition, and by way of cross-bill alleged that he recognized Warmaek’s right to run his mill-race upon his (Brownlee’s) land to the spring, but under the easement so granted him, he (Warmack) was bound in law to confine the water in the race and not allow it to escape over his (Brownlee’s) land through which the race was cut; that Warmack had not so confined it, .but negligently failed to repair breaches in the banks of the race and allowed the water to escape and run over his (Brownlee’s) land and damaged it to the amount of five hundred dollars; that Warmack had also raised the height of the dam upon his own land, and thereby caused the water to flow back upon his (Brown-lee’s) land and damaged it from this cause additionally to the amount of five hundred dollars, for which he prayed a judgment, and also prayed'that Warmack.be compelled to lower his dam to its original height. On demurrer to this cross-bill, the court struck it from the answer, because it was not germane to any matter or relief set up in the original petition. 1. It will be observed that the petition did not ask for any damages, nor for any other relief than an injunction against the threatened cutting of the ditches. Brownlee had not, at the time nor subsequently, as far as the record discloses, committed any tort upon Warmack, but had only threatened to do so. The only complaint he had was the threatened injury, and this was the gist of his complaint. We do not think, therefore, that Brown-lee could by way of cross-bill set up a tort committed by Warmack, not germane to any matter alleged in his petition, and recover damages therefor. He might as well [778] have alleged that Warmack had killed his stock upon the land, slandered him, or committed some other tort upon his person or property. The rule in equity is that the'matter contained in the cross-bill must be germane to the matter in the original bill. It is true that under section 8261 of the code, one tort may be set off against auother, but this does not apply where one of the torts has not been committed but only threatened. . Warmack does not allege that Brownlee committed any tort against him, but merely that he had threatened to do so. We therefore do not think that Brownlee could by way of cross-bill set up and recover damages for a tort against him, and we hold that the judge was right in sustaining a demurrer to this part of the answer. 2. The other points made in the bill of exceptions are sufficiently elaborated in the head-notes. Judgment affirmed.