Simonson v. Cain

SHARPE, J. As first filed the bill in this case alleged in substance that complainants own land along a part of and under a part of “Little Bay,” and have planted oysters in part of the bay; that, the water of the bay is shallow and non-navi gable; that defendant has trespassed their oyster bed by passing boats over it, thereby [224] pressing oysters into the mud and causing irreparable damage, and that he has threatened to continue such conduct. The prayer was for an injunction to prevent such continuance. The bill was three times amended. The first amendment further describes the bay and alleges that defendant had, before the bill was filed, told one of complainants he intended to plant oysters and to carry them in boats over complainants’ beds, and that he is insolvent. The second alleges the practicability of a boat-way through the water and mud of the bay, and prays, as relief, to be awarded in the event of a denial of the relief first prayed, that defendant’s boat passage be confined to a way to be marked under orders of the court. The third amendment consists of a statement to effect that since the second amendment, and to save delay and expense, complainants and defendant have marked a passage way across the oyster bed whereby a reference to the register for the purpose of marking a way was rendered unnecessary. We do not interpret this amendment as showing that the way has been conventionally established or that defendant’s right to pass along that way is conceded or that the bill in either its first aspect or in the -aspect by which the establishment of a way is alternatively averred has been abandoned. Its effect is merely to show a marking out of a way to be effective only if ultimately the decree is for relief under the alternative prayer, and to render superfluous that part of the prayer which calls for the making of a way finder directions of the court. There is no repugnancy or inconsistency as between the averments on which the prayers are based, or as between the relief sought, in the first and that sought in the second aspect of the bill. The case made looks to the exclusion of defendant’s boats from the entire oyster bed and, second, to the exclusion of the boats from part of the bed, name-U. all except along a particular route. The bill is sin-ale in its main object which is the prevention of damage to that bed, and is thus seen to be free from the objection of multifariousness which is the only objection raised bv the demurrer. The decree in so far as it sustained the demurrer is erroneous and must be reversed, [225] A sworn answer retains its character as a sworn anstver to so much of the bill as it responds to, though the bill may have been amended subsequent to the filing of the ansAver. To this bill as first filed there is a sworn answer and to the bill as it stood Avhen amended the second time there is a further SAVorn answer. The last amendment set up no new case, or fact requiring answer, and, therefore, the ansAvers were as SAVorn denials of the amended bill averments available on the motion to dissolve the injunction, without further oath or verification. — 10 Encyc. PI. & Pr. 1054. By his ansAvers defendant sets up a right in himself, such as is given by statute (Code, § 3155), to plant oysters along, lands he has leased along the bay, and avers that the bay is a navigable arm of Mississippi Sound. He admits declaring an intention to plant oysters, and that he has gone in and out of the bay in a proper manners. The ansAver, hoAvever, in substance denies that defendant has trespassed on or injured, or threatened to damage complainants’ beds, and denies that defendant is insolvent. These denials are in form specific and together Avith the averments of the ansAver Avhich amount to denials of what complainants allege concerning the depth of Avater in the bay, directly meet and contradict allegations in the bill without which it Avould lack equity. They are, irrespective of all new matter in the answer, sufficient to uphold the decree in that part Avhich sustained the motion to dissolve the injunction, anything contained in the opposing affidavits notwithstanding. The decree will in that part be affirmed. Affirmed in part, and in part reversed and remanded..