129 Ga. 712 | Ga. | 1907
This case was formerly before us on exception to the overruling of a demurrer to the plaintiff’s equitable petition. The judgment was reversed. 126 Ga. 210 (54 S. E. 1028, 1 L. R. A. (N. S.) 1139). The petition is there briefly reported. On the return of the case to the superior court, and on the presentation of the remittitur from this court, the plaintiff offered an amendment to its petition, the principal allegations of which were substantially that the plaintiff and the defendant each held by a chain of
We shall not enter into a general discussion of the petition and the amendment, but shall confine ourselves to the two grounds of objection to the latter which were urged and sustained.
The object of amending is ordinarily to cure some mistake or defect, or to perfect that which is not already compléte. If the petition is already perfect, it requires no further perfecting. If there is no defect or mistake, there is nothing to cure. If the rule were established, that, to contain enough to amend by, there must be enough to withstand a demurrer, the utility of the right to amend would be largely abrogated. The Civil Code (§5097) declares that parties may amend their pleadings “in all respects, whether in matter of form or of substance, provided there is enough in the pleadings to amend by;” but the defendant after the first term can not set up .new matter by way of amendment, except as elsewhere in the code provided. Section 5098 reads as follows: “A petition showing a plaintiff, and a defendant, and setting out sufficient to indicate and specify some particular fact or transaction as a cause of action, is enough to amend by. The jurisdiction of the court may be shown, and the details and circumstances of the particular transaction may be amplified and varied by amendment. If the declaration omit to allege facts essential to raise the duty ■or obligation involved in the cause of action which was evidently originally intended to be declared upon, the omitted fact may be supplied by amendment.” These two sections point out the right of amendment, and what will constitute enough to amend by, and "throw light on the question of the extent to which the right may be exercised without being obnoxious to the rule against adding a new and distinct cause of action, stated in the next section (5099).
The original petition may be thus briefly summarized: The
Counsel for the defendant in error dealt with the original case as if it were merely a suit on a breach of a covenant. But we can not concur in this view. It was primarily an effort to enjoin the alleged wrongful use of more water-power than the defendant was entitled to draw from the stream, according to the plaintiff’s contention. Incidentally damages were sought for the alleged injury in the past. One or two references to the original petition will, suffice to show that the water, as well as the power generated bj' it, was in the view of the pleader. At one point in the petition it was alleged that “under none of the different arrangements for confining the water of the river was it [the defendant] to have or use more than its proportionate part of the water as designated and fixed in said original conveyance.” At another it was alleged that the defendant claimed the right to take from the canal or basin “as much of the water of the river as it desires,” etc. Again, that, during a dry season in the year 1902, the defendant “continuously used and took from the canal -or basin water largely beyond the amount to which it was entitled and to the extent of from one' fourth to one half of the entire water-power of the river as de
But it was said that the alleged duty on the part of the defendant not to use more than a certain quantity of water or waterpower depended, in the original petition, solely upon certain covenants which this court held were not shown to run with the land, and that the amendment sought to add a new cause of action by showing additional reasons why this duty existed. Even in the original petition there are allegations that the plaintiff held under conveyances coming down from Howard, and that its immediate predecessor in title had built a new stone dam instead of the old wooden one, at a slightly different place. The statements were insufficient to make out a case. But,' as already stated, the design of the pleader was sufficiently indicated to show that the plaintiff claimed that it and the defendant both held factory sites under conveyances from Howard, that there was a duty on the part of the defendant to linrit the amount of water or water-power taken from the stream to not more than one nineteenth part of the whole, and that it was violating that duty, to the damage of the plaintiff. This presents a case within the contemplation of section 5098 of the Civil Code, above quoted.
This whole question of amendment has been so thoroughly discussed in Ellison v. Georgia R. Co., 87 Ga. 691 (13 S. E. 809),
The deeds under which the plaintiff claims are not before us. When they shall have been produced, we can not say what they may show as to the water rights sought to be asserted. Nor can we foresee what the evidence may develop. What we now hold iss that the two grounds of objection made to the proposed amendment were not well taken.
Judgment reversed.