Tokstad v. Daws

Mr. Justice McNary delivered the opinion of the court. 1. Several errors are assembled to overthrow the decree of the trial court; the first being that the court erred in not dismissing plaintiff’s complaint in response to a motion to that effect. The motion to dismiss the complaint was properly denied by the court, as defendant had met the issues therein presented by an answer containing matters,, correlated to the subject matter of the litigation expressed in the complaint, sufficient upon which to predicate a prayer for affirmative relief. Had the court obeyed the purpose of the motion and dismissed the complaint, still the case would have remained in court, as the defendant had, by his pleading, made a case against the plaintiff which the latter was obliged to meet. A different situation would have presented itself had the answer embraced matters wholly defensive, with no prayer for affirmative relief, as in that event the allowance of the motion would have been proper, and the case would have automatically terminated. The doctrine announced in the case of Maffett v. Thompson, 32 Or. 546 (52 Pac. 565, 53 Pac. 854), seems controlling on this point. The adequacy of the statement of facts, constituting the counterclaim, was not drawn in question by plaintiff, and the trial proceeded upon the issues made by the counterclaim and the reply. A dissection of defendant’s answer reveals these components: (1) That the parties are owners of bordering farms; (2) that for a time long distant a natural watercourse has run along plaintiff’s land near the premises of defendant, affording each litigant drainage; (3) that in the autumn of 1911 plaintiff wrongfully commenced the digging of a ditch on defendant’s land, and simultaneously therewith obstructed the flow of the water from [91] its accustomed channel; (5) that upon the request of defendant plaintiff refused to desist from the obstruction of the ditch upon the defendant’s premises; (6) that plaintiff began the erection of a division fence on the lands of defendant; (7) that the ditch constructed by plaintiff collected the surface waters upon his lands, and deposited the same upon the premises of defendant, to his damage in the sum of $150; (8) that an additional $700 would be required to remove the obstruction to the natural watercourse. Thus it clearly appears by defendant’s answer that he had-a legally subsisting cause of suit in his favor and against plaintiff, upon which defendant could have maintained an independent suit. Upon the consideration of the complaint, it will be observed that the subject for determination there proposed is the location of the division fence, the construction of the ditch, and damages suffered by plaintiff incidental thereto, which constitute the same subject of litigation expressed in the defendant’s counterclaim. 2, 3. Counsel for plaintiff next asserts that the lower court had no jurisdiction of the subject matter of the suit, and that the want thereof may be raised at any time. When facts necessary to confer jurisdiction on a court of equity are stated in the pleading of the moving party, but denied by the other, the question of jurisdiction becomes one of fact, and, when the lack thereof appears, it is incumbent upon the court to dismiss the suit: Love v. Morrill, 19 Or. 545 (24 Pac. 916). However, in the case in mind, plaintiff met the controversy suggested in defendant’s answer by an admission of the acts charged, but attempted to avoid liability by alleging a mistake mutual to both litigants, a lack of intent to do- defendant substantial injury, and concludes by seeking affirmative relief. The court, having obtained jurisdiction of the subject of litigation on the grounds set forth in defendant’s answer, [92] rightfully retained jurisdiction for the purpose of administering complete relief with respect to the entire subject matter. 4. If the matters set forth in defendant’s answer were entirely without the fold of equitable jurisprudence, no act upon the part of plaintiff would confer jurisdiction; but a cursory inspection of the pleading will unfold that it contains controversial elements quite within the field of equitable jurisdiction. On this phase of the law, Mr. Justice Eakin, in Maxwell v. Frazier, 52 Or. 183 (96 Pac. 548, 18 L. R. A. (N. S.) 102), well said: “But a distinction must be made between an entire lack of matter of equitable cognizance and cases within the field of equitable jurisdiction, in which an element essential to complete jurisdiction is lacking. In the former the objection is not waived by failure to interpose it at the proper time, but it is available at any stage of the proceeding, while in the latter, if the objection is not seasonably interposed, it will be deemed to be waived. In such a case the subject of the controversy is equitable, and the relief sought such as equity alone can grant.” Counsel for defendant intimated in his brief that the question of the intent which prompted plaintiff to enter upon defendant’s land and commit the acts alleged and admitted should be a guiding consideration in the disposition of this case. This element has no place when actual damages alone are sought to be recovered. The decree is affirmed. Affirmed. Mr. Chief Justice McBri-de, Mr. Justice Bean and Mr. Justice Eakin concur.