Burden v. Mayor of Mobile

DARGAN, C. J. — We think it very clear that the statement shows no cause of action; for, though it is alleged that the defendants turned and diverted large quantities of water from the plaintiff’s mill, it is not shown that he was injured [311] thereby, or that by such diversion of the water, the quantity that continued to flow to the mill was insufficient, or that the mill was in anywise injured thereby. The authorities referred to by the defendant’s counsel fully show, that the water of a running stream may be diverted, if the quantity taken from the stream be not so great as to injure others who have a right to its use. 2 Barn. & Cress. 908; 6 Porter 472. But it is contended, that as the amount sued for is not over twenty dollars, the court should not have given judgment for the defendant because the plaintiff refused to amend his statement, but should have proceeded to try the cause on its merits, without any issue in writing. I should be inclined to hold that this would be proper practice, inasmuch as no issue is required, to be made in cases of appeals from justices of the peace, when the sum claimed is not over twenty dollars. But the court, however, think that, inasmuch as the plaintiff saw proper to set forth his cause of action in writing, which failed to show a legal liability, that he should either have amended it, or have offered to introduce his evidence and try the cause on its merits, without an issue; and as he refused to amend, and the record does not show that he offered to introduce proof and go to trial without an issue, that the court did not err in rendering a judgment for the defendants. As this difference of opinion, however, is on a mere point of practice, I yield my own to the opinion of the court, and hold that, as the plaintiff refused to amend his statement, he should have offered to go to trial without one, in order to show that the court erred. Let the judgment be affirmed.