Newcomb v. Royce
Nebraska Supreme Court
Error from the district court of Clay county. Tried below before Morris, J. The facts are stated in the opinion. The court erred in not submitting to the jury the issue as to whether or not any or all of the claim of defendant in error had been paid.
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Error from the district court of Clay county. Tried below before Morris, J. The facts are stated in the opinion. The court erred in not submitting to the jury the issue as to whether or not any or all of the claim of defendant in error had been paid. (6 Lawson, Rights, Remedies & Practice, sec. 2924; Coxales v. Kidder, 24 N. H., 364; Rerick v. Kern, 14 S. & R. [Pa.], 267; M’Kellip v. M’lllhenney, 4 Watts [Pa.], 317.) The court erred in submitting the question whether or not the damage was paid, to be answered “yes” or “ no,” the true question being, what amount of the damages was unpaid?…
1Opinion of the Court
Irvine, C.
This was a proceeding under section 14 of chapter 57, Compiled Statutes, entitled “Millsand Mill-Dams.” The petition was filed by Royce after notice to Newcomb, and it alleged that Royce was the owner and in possession of certain land in Clay county; that in 1888 Newcomb became the owner of other land; that the Blue river, a stream of water with sufficient flow for a mill-dam, traversed both Royce’s and Newcomb’s laud; that Royce’s land *325lay above Newcomb’s; that Newcomb, from the time he obtained his land, operated thereon a mill for the grinding of grain for toll; that for the…
2Cases cited4 opinions
- Pennington v. ThomasonTennessee Supreme Court · 1849
- Kyner v. UpstillNebraska Supreme Court · 1890
- Pierce Mill Co. v. KoltermannNebraska Supreme Court · 1889
- Sutliff v. JohnsonNebraska Supreme Court · 1885
3Cited by2 opinions
- Polyzois v. ResnickNebraska Supreme Court · 1932
- Johnson v. Sherman County Irrigation, Water Power & Improvement Co.Nebraska Supreme Court · 1904