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 evidence. If there had been but one witness, and he sworn for the plaintiff in that suit (defendant in this) and testifying without objection, this testimony of
This action was originally commenced in a justice’s court, and, upon a plea of title being interposed, was there discontinued and recommenced in the Supreme Court. It was brought to recover damages caused by the overflow of the lands of the plaintiff, by means of dams erected by the defendant upon a stream passing through the lands of both parties. The plaintiff, on the trial, produced evidence that, in a suit in a justice’s court, instituted by this defendant against this present plaintiff, the questions at issue in this cause had been litigated and adjudicated, and that it had been decided that the defendant has no right, by dams or obstructions, to turn the water from his land on to the lands of the plaintiff. The defendant objected to the evidence, on the ground that the same was immaterial, as that
It appeared that the appeal from the judgment was still pending and undetermined. The court held, that the former trial and judgment on the' same question as that litigated in this case, namely, that the original,-natural and rightful bed and channel of the stream in question was across the land of the defendant, to, upon and through the land of the plaintiff, in the course and direction in which the same flowed at the time and times complained of, settled the right of the parties, and the defendant could not, in this action, again litigate the same. The court instructed the jury that the plaintiff was entitled to recover, to which instruction the defendant excepted, and the jury found a verdict for the plaintiff, and judgment thereon was affirmed at General Term.
But two questions are presented for consideration, and the first is as to the conclusiveness of the judgment before the justice upon the rights of the parties. The questions raised and litigated in both actions were identical and based upon the right of the defendant to build and maintain the dams. The litigation in each action was between the same parties; and the judgment of a court having jurisdiction of the parties and of the subject-matter of the action is conclusive, until reversed, upon the parties thereto and their privies. (Freer v. Stotenbur, decided June Term, 1866; Kerr v. Hayes, decided September Term, 1866; Burt v. Sternburgh, 4 Cow., 559.)
A judgment of a justice of the peace, in a case of which he has jurisdiction, is, while unreversed, for every purpose, as conclusive, between the parties, as that of the highest court of record in the State. (Mitchell v. Hawley, 4 Denio, 414.)
Although a mere revocable license would be enough to establish a-defense, still they might have set- up a grant as a title by prescription of a right to divert the waters of the stream, if such was the nature of their claim. ■ This would have been an easement burdening the plaintiff’s premises for the benefit of the lands, for the advantage of which the diversion was made. If such a grant or prescription had been set up it would have entitled the plaintiff to costs under the provisions of the Eevised Statutes. In the action in the justice’s court-1 it was decided where the stream ought to run, and that decision was binding and conclusive upon the defendant until reversed. He cannot now set up in this ■ action that the stream ought to run in a different channel from that established in that action as its proper and legitimate channel.
■ But by the fifty-ninth section of the Code, if - it should appear on the trial, from the plaintiff’s own showing, that the title to real property did come in question, yet the justice is not. required to dismiss the action, unless such title shall be disputed by the defendant. The defendant has not 'shown affirmatively that the title to land did come in question on that trial. The plaintiff", in his complaint before the justice, alleged a trespass upon his close, but the defendant admitted in substance that the premises were the close of the plaintiff, but claimed the right to enter upon the same for the purpose of changing the course of the stream. The defendant did
In Koon v. Mazuzan (6 Hill, 44), it was held, that although it appeared on a trial in a justice’s court, from the plaintiff’s own showing, that the title to lands is in question, and the justice improperly refused to dismiss the cause, his judgment will not be void for want of jurisdiction, but only voidable for error. It was also held that the justice may properly proceed and render judgment, notwithstanding evidence of title to lands be given, by the plaintiff, if the defendants do not expressly dispute such title, nor move to have the cause dismissed. Cowen, J., in the opinion of the court, says: “ But, it is plain that the statute does not mean to deprive the justice of jurisdiction absolutely. It leaves him to judge whether the title be in question or not, and if he mistake, the judgment is voidable for error and not void for want of jurisdiction. It follows, I think, that if the party will entitle himself to a dismissal, he must call the justice’s attention specifically to the objection by at least disputing the title claimed. If he omit this, it is a waiver and a virtual assent that the evidence of title shall be. received, and that the title
In Browne v. Scofield (8 Barb., 239) the court, by T. A. Johnson, Justice, said, referring to Koon v. Mazuzan (supra), that it was there held that a party to entitle himself to a dismissal, must call the justice’s attention specially to the objection, by at least disputing the title claimed, or he will be deemed to assent to the evidence being received, and will not be heard afterward to object. In that case the title was not disputed, and nothing set up to give the justice any fair notice that the defendant was disputing or contesting in any way the plaintiff’s right or title. And it was said, that, if that suit had turned upon this question, the court would have no hesitation in saying that the right was not disputed or the objection taken distinctly enough to apprise the justice fairly of its object. That there is no objection to a justice rendering judgment, although the title to lands is in question if the defendant do not expressly dispute it on the trial. (Referring to Adams v. Beach, supra.)
In Adams v. Rivers (11 Barb., 390), it was held that when a complaint in a justice’s court is so drawn that the defendant can set up title on his answer, and on giving the requisite security oust the justice of his jurisdiction, but omits to set up title, the justice retains his jurisdiction and the defendant will be precluded from drawing it in question on the trial. "Willard, J., in the opinion of the court says: “The complaint was so drawn that the defendants could have set forth in his answer any matter showing that title would come in question, and thus, by giving the requisite security, oust the justice of jurisdiction. He failed to do so, and therefore the justice retained jurisdiction of the cause, and the defendant was precluded in his defense from drawing the title in question. * * If the title to land was brought in question at all, it appeared on the face of the complaint. The defendant, having failed to make that objection at the joining of the issue and to give the required security, was precluded from raising it as a defense upon the trial. The fifty-ninth section is applicable only to those cases when the defendant
These observations are applicable, with force, to the case - at bar, and effectually dispose of the defendant’s objection that the judgment in the justice’s court, between these parties, was not a bar, on the ground that the justice had not jurisdiction of the action in which it was rendered. As already observed, that objection cannot now be taken, for the period has elapsed for setting up that the title to real property was involved therein. If this question appeared by the pleadings, it was to be interposed at the time of joining issue, and, in addition, security was to be given, if it appeared, on the trial, and was not disputed; then, in either contingency, the parties are now precluded from setting it up.
It follows that the justice’s judgment was legal and valid, and the rights determined by it could not again be opened for contest, and the judgment appealed from must be affirmed, with costs.
Judgment affirmed.