1860. ROBBINS V. LINCOLN. clause relates only to the legal conclusion of indebtedness, Jan. Term, and if it contained a positive denial of indebtedness without denying the facts alleged, out of which the indebtedness would arise, it would amount to nothing. Drake vs. Cockroft 10 How. Pr. R., 377. Its effect depends therefore on the first clause, and it is very evident that if this referred expressly to the allegations of the complaint, it would be very objectionable in point of form. The complaint avers that the plaintiff paid out for the defendant divers sums of money, giving a great number of items. Suppose the answer should contain a specific denial that all those sums were paid out. Such a denial is not inconsistent with a perfect knowledge that all but one had been paid out. A denial in the precise language of the complaint is not sufficient; it must be of the substance of the allegation. And the rule as to answers in equity has been held applicable to answers under the code. And under that rule, "it is not enough when a charge is made with all the circumstances of time and place, &c., to deny such charge generally in the words thereof, but in all cases where the charge embraces several particulars, the answer should be in the disjunctive, denying each particular or admitting some and denying others according to the fact." Van Santvoord Pl., 426. It seems very obvious that to a complaint for goods sold and delivered, a denial that the plaintiff had sold and delivered all the goods mentioned, would be insufficient. But the denial in this answer does not even amount to that. As before observed, the first part of it is simply a denial that the plaintiff had paid out any moneys, except such as the defendant had furnished him for the purpose. This implies that he had furnished the plaintiff moneys to be paid out, but contains no averment as to how much. The last part of the answer is a denial of knowledge or information sufficient to form a belief, not as to whether the plaintiff had paid out all the moneys averred in the complaint, but all which the "defendant had furnished as aforesaid." He might have furnished more than the complaint claimed to have been paid out, and then the answer would have been consistent with a perfect knowledge that the plaintiff had paid all he alleged. It seems clear, therefore that an answer aver ROBBINS V. LINCOLN. Jan. Term, ring by inference that the defendant had furnished the plain1860. tiff moneys to pay out, and then denying knowledge or information as to whether he had paid it all out, cannot be construed into a denial of knowledge that the plaintiff had paid out certain sums mentioned in the complaint. I think therefore, that, as a matter of strict pleading, the allegations in the complaint as to the paying out of money were not sufficiently denied to put the plaintiff upon the proofs. And though this point was not made upon the argument, I have examined it the more closely by reason of the effect that a sufficient denial in this respect, would have had upon our conclusion as to the application of the payments, which latter point was urged by the respondent's counsel. For on the trial the evidence offered by the plaintiff to prove these items, was objected to, and excluded by the court. And it is very evident that if they are left out, even though all the other items sued for were fully established, the payments admitted by the complaint were more than enough to overbalance them; and therefore no such application of payments could have been made, as would leave any balance for the plaintiff. But, though it does not appear of record, it would seem that this evidence must have been excluded upon a mutual understanding that these items were for moneys which the plaintiff had paid out as agent of the defendant and the latter had furnished, and which the plaintiff had credited among the payments admitted in the complaint. For the whole contest after its exclusion, both in the court below and here, was upon the other items and the questions arising thereon, when, if this evidence was properly excluded, with the burden of proof on the plaintiff to establish those items, that was an end of the case. But we think this effect was not produced, for the reason that they were not sufficiently denied by the answer. The only other question was as to the admissibility of the deposition. It was objected to, for the reason that it did not show any legal reason for taking it, the certificate stating only that the witness was going out of the state, but not that he would not return in time for the trial. We are inclined to think that under the strict rules prevailing as to the tak ing of depositions, this objection was correct. But we are still Jan. Term, 1860. FAVILLE V. GREENE. FAVILLE VS. GREENE. A complaint, under what is commonly called the "Mill Dam Act," alleged that the plaintiff was, and for more than three years had been, the owner in fee, and actually possessed of certain lands therein described; that during all that time, he had the right to the use and profits of said land; that the defendant, for more than three years last past, had kept up and maintained, across a stream (not navigable,) a mill dam, to raise the water for working a grist mill, &c., by means whereof the water of said stream had, during all that time, been caused to set back upon and overflow the said land, and deprive the plaintiff of the use thereof, which was of the value of $350 per year, and demanded judgment, that said damages be assessed under the provisions of the statute, &c.: Held, that the complaint showed a good cause of action. APPEAL from the Circuit Court of Jefferson County. This was an action under what is commonly called the "Mill Dam Act," commenced in 1859. The complaint alleges that the plaintiff is, and ever since the 4th of June, 1855, has been, the owner in fee, and actually possessed of certain land therein described, and, during all that time, has had the right to the use and profits of said land; that the defendant, for more than three years last past, has kept up and maintained, across a stream (not navigable,) a mill dam, to raise the water for working a grist mill, &c., by means whereof the water of said stream has, during all that time, 1860. FAVILLE V. GREENE, Jan. Term, been obstructed and caused to set back upon and overflow the said land, and deprive the plaintiff of the use thereof, which was of the value of $350 per year, and make it valueless; wherefore the plaintiff demands judgment, that the damages he has already sustained in the premises be assessed, under the provisions of the statute, and also for all damages which may hereafter be occasioned to the premises in consequence of such flowage. Demurrer to the complaint on the ground that it does not state facts sufficient to constitute a cause of action, and specifying the following objections: 1. It does not show that any of said plaintiff's land is overflowed, which was not flowed before the erection of said dam. 2. It does not show that said land, so overflowed, was of any value before the erection of said dam, or that the same would be of any greater value than now, if said water was off. 3. It does not show that said dam caused the waters of said river to overflow its banks, or flow out of its natural bed. 4. It does not show that no compensation has been made for the damages caused by said flowing. 5. It does not show that the height to which the defendant might raise the water by said dam, has not been settled by contract or otherwise. 6. It does not show that defendant had wrongfully erected or maintained said dam, or caused said land to be overflowed, nor but that he had a perfect right to do so, without paying damages to the plaintiff on account thereof. 7. It does not show when said dam was erected. 8. It does not show whether or not plaintiff's land was so overflowed when he acquired title, nor but that he purchased the same subject to defendant's right to overflow the part now alleged to be overflowed. 9. It does not show that defendant has ever had any notice that said dam caused said water to overflow the plaintiff's land, nor that the plaintiff sustained any damage on account thereof 10. It does not show that defendant has been requested to take said water off from said land, or to make compensation to plaintiff for damages. 11. It does not show that plaintiff has sustained damages, by reason of the maintenance of said dam, over and above the benefits to him occasioned by said dam. 12. No civil action can be 1860. maintained against a party for flowing land, upon such facts Jan. Term, as are stated in said complaint. The circuit court overruled said demurrer, and from the order overruling the same, the defendant appealed. Gill, Barber and Fribert, for appellant: The plaintiff is not entitled to compensation for injury done his land by the overflowing of the water, caused by the dam, because it does not appear by the complaint, that he was the owner of the flowed land, when it was first overflowed, that is, when the dam was erected; and unless he was the owner at that time, he has sustained no injury, has had no property taken from him, and hence is not entitled to compensation. This court has sustained the constitutionality of the present mill dam law, solely upon the theory that the flowing of land by the erection of a mill dam, is taking private property for public use. 1 Chand., 71; 3 Wis., 461; 3 id., 603. The taking is complete when the dam is erected and the land first flowed, and the rights of the owner to so much land as is flowed, are thereby divested, and he, in lieu thereof, has a claim against the taker, (the mill dam owner,) for compensation, which is but a chose in action, in the nature of a claim for purchase money; and if he dies before it is paid, it will belong to his personal representatives, and not to the heir; and the measure of damages in such cases, is the depreciation in the market value of the land at the time of the taking. It follows, that no one but the owner of the land at the time it is taken for public use, can recover compensation, for he alone has sustained the injury, and his grantee takes subject to a privilege, or easement, which, in judgment of law, may be coextensive with and permanent as the land itself. 8 Cushing, 278; 4 Cushing, 469; 7 Met., 78; 5 Met., 81; 2 Met., 558; 12 Pick., 482; 7 Serg. & Rawle, 420; Turnpike road vs. Brosi, 22 Penn. State Rep., 32; Reese vs. Adams, 16 Serg. & Rawle, 40; Zimmerman vs. the Union Canal Company, 1 Watts & Serg., 354. Enos & Hall, for respondent: The statute indicates what the complaint should contain, and the complaint in this case complies with its requirements. "The flowing of land by a mill owner is not a disseisin of FAVILLE V. GREENE. |