Russell v. Turner

62 Me. 496

• Court: Supreme Judicial Court of Maine
• Decided: July 1, 1874
• Status: Published

Opinion

Appleton, O. J.

This is a complaint for flowage under E. S., c. 92, § I, in which there is no allegation that the defendant owned the land on which the dam causing the flowage was erected. It was held in Jones v. Skinner, 61 Maine, 25, that a complaint without such allegation was bad on demurrer.

But in the case at bar no demurrer was filed. The cause proceeded to trial, and a verdict was rendered in favor of the complainant. Exceptions were filed, which upon full consideration were overruled. Russell v. Turner, 59 Maine, 256. After all this, under leave of the court, the words, “on his own land” were inserted in the complaint by way of amendment. ■ To the allowance of this amendment exceptions were taken.

We must presume that the instructions were in all respects correct ; that none which the case required were withheld, and that every fact essential to the maintenance of the complaint was fully proved. As the case has been rightly tried on its merits, the amendment was properly allowed, though after verdict. The defendant has been neither surprised nor misled. Had he been, he would long before this have brought the fact to the notice of the court. The authorities are almost uniformly in favor of sustaining the propriety of the amendment. Cleaves v. Lord, 3 Gray, 66; East Boston Timber Co. v. Persons, 2 Hill., 126; Nichols v. Prince, 8 Allen, 404; Peck v. Waters, 104 Mass., 345; Banner v. Angier, 2 Allen, 128. Exceptions overruled.

Walton, Dickerson, Barrows, Yirgin and Peters, JJ., concurred.