Boyer v. Schofield
New York Court of Appeals
Action to recover damages caused by the alleged diversion of a stream -of water on to the plaintiff’s land, originally commenced in a justice’s court and dismissed there by plea of title.
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Action to recover damages caused by the alleged diversion of a stream -of water on to the plaintiff’s land, originally commenced in a justice’s court and dismissed there by plea of title. At the trial, after the plaintiff had partly proved his case, he introduced in evidence a judgment in his favor rendered in a justice’s court, where this defendant had sued him in trespass quare clausum fregit, for entering on his premises, digging up his land and changing the course of the stream on to this defendant’s lands. This plaintiff, as defendant in that suit, in his answer, first denied the whole…
1Opinion of the CourtPeckham, J.
It lies with the party alleging error affirmatively to show it. If any presumptions are made they are always in affirmance of a judgment.
In the case at bar it nowhere appears that the title of either party in the justice’s court was disputed or denied; in such case, if evidence be given of title, it does not oust the justice of jurisdiction. (Koon v. Mazuyan, 6 Hill, 44; Adams v. Beach, id., 271.)
Had it been disputed, the party insisting upon the invalidity of the judgment should have proved that fact. The justice testified that he decided where the stream ought to run according to the…
2Cases cited7 opinions
- Adams v. RiversNew York Supreme Court · 1851
- Burt v. SternburghNew York Supreme Court · 1825
- Browne v. ScofieldNew York Supreme Court · 1850
- Rathbone v. . McConnellNew York Court of Appeals · 1860
- Watts' Administrators v. KinneyNew York Supreme Court · 1840
2 more not listed; retrieve them via the Exa API.
3Cited by4 opinions
- Masten v. . OlcottNew York Court of Appeals · 1886
- Masten v. OlcottNew York Supreme Court · 1881
- Masten v. OlcottNew York Supreme Court · 1880
- Ryan v. HarriganNew York Supreme Court · 1877