San Andreas independent., 1858-01-30
Decision of the Supreme Court-January
Term. 1853.

Call and 0thers.-ThiS was an action to recover
damages for the diversion of water from the
ditch of plaintiffs, and to enjoin the defendants
from continuing the nuisance The plaintiffs
had judgment in the Court below and the de-
PENDANTS appealed.
l. The first error assigned by defendants is,
that the Court below erred in overruling de-
PENDANTS motion for nonsuit, This objection
we think not well taken. The evidence was
sufficient to go to the jury.
2. The second error assigned is, that the
Court erred in admitting parol evidence OF the
contents of the deed from Cooper to plaintiffs
Immediate grantors, without accounting Tor
the nom production of the instrument In an
swer to this objection, the counsel of plaintiffs
insist that the fact was not denied in the an
swer The complaint and answer were both
verified. In the complaint it was alleged that
Thomas Cooper and others constructed the
ditch, and that on the 10th day of October,
1855, and for long time previous thereto,
Charles II. Everett, John A. Head, and James
NJ Dean, were the owners and successors in
interest of the said Thomas Cooper and others,
of in and to the said Georgia Ditch" This
allegation of the complaint is met by the de-
PENDANTS, in their answer by this denial: "And
the said defendants deny, for want of informa-
ton to enable them to admit, the sale and
transfer of said Georgia Ditch to them, the
said plaintiffs, as alleged in the said COM
plant"
In case the compliant be verified, the answer
must contain specific denial to each allega-
tion of the complaints controverted by the de-
fendant, or a denial thereof according to his
information and belief; and every allegation
not so denied, shall, for the purpose of the ac-
ton, be taken as true. Sections 46 and 65.
The only consequence resulting from the
failure of defendants to properly deny par
ticular allegation of the complaint is, that the
allegation shall be taken as true. No motion
to set aside the answer is required but 1t is
held simply void, and raises no issue.
When the alleged fact is, from its nature,
presumptively within the personal knowledge
of the defendant, he cannot be permitted to
answer upon information and belief, but must
answer in the form positive. And where, from
the nature of the fact alleged, the knowledge,
if any, of the defendant, is presumptively
based upon information, he is not bound to
deny positively, but only according to his
information and belief" In this case, the
transfer from Cooper was the act of third
party and unless it had been expressly alleged
in the complaint that defendants knew that
fact of their own knowledge, they could only
be required to answer according to informa-
tion and belief But the defendant, in such
case. must answer according to both his infor-
nation and belief. The answer in this case
says nothing about the belief of the defendants.
1t does not deny that defendants had any in
formation, but simply AYERS a want of infor-
nation to enable them to admit not believe,
the alleged fact. The object of the statute is
to, sift the conscience of the defendant, and OBJ
tain from him has belief He must answer ac-
cording to his belief, whether that belief be
founded upon sufficient or insufficient informa-
ton. The word " belief as used in the stat
ute, is to be taken in its ordinary sense, and
means the actual conclusion Of the defendant
drawn from information. There is a clear
distinction between positive knowledge and
mere belief and they cannot both exist to-
gether.
The defendant can know what is his belief,
and can, therefore, state it. This belief may
be founded upon the statements of others, not
competents witnesses and not under oath, and
not, therefore, legal testimony to prove the fact
in Court, if denied. Yet if the defendant has
formed belief of the fact from this incompe-
tent testimony, he must state it. In making
out has answer he cannot undertake to decide
whether the information upon which his belief
is founded was legal testimony or otherwise.
He must state facts only and the fact of has
belief is the only matter known to him. If
permitted to judge as to the legal competency
of the information upon which his actual be-
lief is founded then the object of the statute
in requiring him to answer according to his be-
lief, would be defeated.
The only object in requiring the defendant
to state his belief, is to dispense with the ne
cessity of proof on the part of the plaintiff If,
then, he admits that he believes the fact to be
true, the fact stands as confessed. The clear
result of this provision of our statute is con-
ceived to be this: that the defendant must
state his actual belief whether founded upon
mere hearsay evidence, general report, or other
information and when he does so state it. he
is precluded from controverting the alleged
fact which he 6etieces, but does not knoao to
exist The practical result is that the plaintiff
may establish the existence of fact, not
known to the defendant, by the defendants
mere belief, based upon incompetent evidence
The statute changes the law of evidence in
favor of the plaintiff, and against the defen-
dant. 1t permits the plaintiff to verify his
complaint and then the defendants compelled
to state his belief as to facts he does not know
to exist. And when those facts unknown to
the defendant) are alleged and sworn to by
the plaintiff upon his own knowledge, the de-
fendant is compelled either to believe them to
be true or to believe the plaintiff guilty of
perjury.
Under the construction we are compelled to
give the statute to make it particularly opera
tive, the answer contained no proper denial of
the alleged fact. The rule is hard one, but
the remedy must be sought elsewhere. While
the defendant is compelled to answer every
material allegation in the complaint, the plain
tiff is not required to answer new matter set
up by the defendant, but the same is deemed.
controverted without any denial But we
must administer the law as we find it. This
provision of our Practice Act would seem to
be fruitful source of moral, if not of legal,
perjury.
B. The third assignment of error depended
upon the second, and is already disposed of:
4. The fourth, fifth and sixth assignments of
error are substantially the same, and may be
all considered together. The defendants Of
fered to prove that there was an older and
better right to the water in Spencer and Ben
son, and that they had brought suit against
defendants for the diversion of the same wa
ter. This proof was refused by the Court and
the defendants excepted.
This defence was not affirmatively set mn in
the answer. The plaintiffs, under the issues
made by the pleadings, were only bound to
establish better right than the defendants.
This they did, by proving prior appropria-
tion of the water by them. The simple denial