Smith v. Elliott
Supreme Court of Pennsylvania
In error from the Common Pleas of Erie. ' Case for a nuisance, by breaking the bank of a water-course, and diverting the water from plaintiff’s mill. The plaintiffs gave in evidence the record of a recovery by their grantor against C. Elliott, and defendant, in which the count was the same as that filed in the present cause, with the exception of an omission to aver any day on which the act was done.
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In error from the Common Pleas of Erie. ' Case for a nuisance, by breaking the bank of a water-course, and diverting the water from plaintiff’s mill. The plaintiffs gave in evidence the record of a recovery by their grantor against C. Elliott, and defendant, in which the count was the same as that filed in the present cause, with the exception of an omission to aver any day on which the act was done. They then proved that defendant had purchased the property benefited by the act, from O. Elliott. They then proved the continuance of the nuisance. The defendant proved the breach in the bank was…
1Opinion of the CourtRogers, J.
The whole difficulty attending this ease arises from a want of attention to the pleadings. The plaintiffs, instead of declaring for the continuance of the nuisance, file their declaration for the same cause between the same parties or their privies, before tried, and in which verdict and judgment were rendered. And the defendant, instead of pleading the former recovery in bar of the action, pleads the general issue. It is not denied *346that the defendant may give in evidence a former recovery in an action on the case for a nuisance, under the plea of not guilty, but it is not, as the court…
2Cited by4 opinions
- Philadelphia v. Ridge Ave. Ry. Co., Pennsylvania Court of Common Pleas, Philadelphia County1891
- Ellis v. Academy of MusicSupreme Court of Pennsylvania · 1888
- Philadelphia Electric Co. v. Hercules, Inc.District Court, E.D. Pennsylvania · 1984
- McElroy v. FilbySuperior Court of Pennsylvania · 1923