The Newtown bee., 1904-01-15
TOWN TOPICS.
THE OVERWHELMING CASE.
JUDGE FILES A MEMORANDUM.

The following memorandum ana or der have just been filed by Judge
 Downs in the Keating- Carey case: As THE BEE understands it, the plalnti1t | made a motion before the court in session in Danbury, last month, asking for an amendment, claiming $500 dam- ages in place of $lOO or S75, whichever l it was:
 Bridget K Heating Court P5ssf of Common | Catharine Carey. Fairfield County, January 13, 1904. Memorandum of Decision on Plaintiff $ Motion for Leave to Amend: The complaint does not properly or sufficiently describe the cause of action disclosed by the evidence and relied upon in the argument in behalf of the plaintiff. Stated briefly and according to it's legal effect and assuming for present purposes that it is true, the plaintiffs evidence showed that by means of Sluiceway through the de- fendant Carey's fence and bank wall and ditch upon her land, the surface water had been collected and conveyed from the highway upon and through said defendants land and discharged at point on said defendants land near the plaintiffs land, from which point it was permitted to, and did, overflow, and damaged the plaintiffs said land; that by overflow and per collation. through the soil the water flowing along said ditch had entered the plaintiffs $ stable, interfering with it's use and injuring the foundation wall thereof. That said sluice, bank wall and ditch were constructed by the defendant town, acting through it's first selectman and town agent with the knowledge and consent of the de- fendant.
 One of the grounds of defence S.lied upon was that said surface water had for more than 30 years flowed along substantially the same course as it now does, but no preScriptive right or ease ment was alleged in the answer and could not properly be proven under general denial.
 The case has been twice tried, once before Justice of the Peace and again, upon appeal, in this Court. Consider able expense has thus been incurred by both parties and, there being a ma terial varience between the allegation of the complaint and the proof, justice requires that the parties be permitted | to amend the pleadings so as to per init of decision which will be res ju- l dicata upon all the issues involved |
 
 Since an amendment has been neces- sitated by the faulty manner in which | the plaintiffs complaint stated the cause of action land this after an op- portunity in the justice court to be- come familiar with the evidence) the should be upon terms.
 The ruling heretofore made relative to the plaintiffs right to equitable relief will not apply to similar de- mand founded upon complaint which shall properly state the cause of action.
 N. c. DOWNS, Judge. Bridget Heating Court of Common 2atharins as' Carey. Fairteid rieIi' County. Order Allowing A Amendment of Plead
 Upon the plaintiffs motion made turing the progress of the trial, for cave to amend her complaint, it it or 1ered that the plaintiff have leave of court to amend her complaint so as to make the allegations thereof conform to the facts adduced in evidence, such to be filed within ten days from this date and upon the payment )f ten dollars costs to each of the de- 'endants.
 Upon the filing of such amendment the defendants may answer, or file any proper pleading or motion within the next succeeding ten days and may sub nit any proper evidence relevant to my issue which may be raised by plead ngs subsequent hereto.
 NC. DOWNS, Judge.
 January 13, 1904: