22 Utah 43 | Utah | 1900
The answer does not cleny that the plaintiff was the owner and in possession of the premises described in the complaint, and not having done so plaintiff’s ownership and possession of said premises are admitted by the defendant.
The denial in the answer that the defendant wrongfully or forcibly committed the acts of trespass alleged in the complaint, except as thereinafter stated, is an admission of the facts so alleged. Podlech v. Phelan, 13 Utah, 333; Long v. Neville, 36 Cal. 546; Levison v. Schwartz, 22 Cal. 230; Larney v. Mooney, 30 Cal. 610; Salmon v. Olds and King, 9 Ore. 488.
The alleged acts of trespass are not thereafter denied either in the answer or cross-complaint, but on the contrary in the cross-complaint it is expressly admitted that the defendant, for the purpose of making surveys and constructing said canals, ditches, and'flumes upon the premises of plaintiff entered upon thei same. Nor does the answer deny that the defendant would have, as alleged, continued to perform the acts complained of, unless restrained by the order of the court.
Upon the pleadings the plaintiff was entitled to recover for the damages done to his premises by the acts of the defendant, unless the facts set up in the cross-complaint justified the same.
At the time the defendant entered'upon the’plaintiff’s premises and commenced to construct canals, etc., thereon, he had acquired no right whatever to do so. The land had not been condemned, and certainly the mere fact he contemplated to have it in the future condemned for his alleged purposes, gave him no right to construct canals, ditches, and flumes upon the same, therefore, the alleged
In the case of The National F. Ins. Co. v. McKay, 21 N. Y. 191, Comstock, J., in the opinion said: “I apprehend that a cotmter-claim, when established must in some way qualify, or must defeat the judgment to which the plaintiff is otherwise entitled. Bliss on Code PI. 386 et seq.; Pomeroy’s Code Pl. 744 et seq.
The facts set up by defendant do not constitute a counterclaim or defense to the plaintiff’s cause of action.
The alleged counter-claim was therefor properly dismissed. It is ordered .that the judgment of the court below be affirmed and that appellant pay the costs.