Boulware v. Parke , 4 Idaho 692 ( 1896 )

HUSTON, J.

Plaintiff brought action against defendant for damages alleged to have been sustained by plaintiff by reason of the wrongful violation by defendant of a decree made and entered by the district court of Cassia county in an action in said court concerning certain conflicting claims to water rights, to which action both plaintiff and defendant were parties. The complaint sets forth the decree, the circumstances, and particular acts of defendant in violation thereof, the nature and extent of the damage, and prays judgment. To this complaint defendant filed a general demurrer to each count, and raised the further objection that the water master of the district was not joined as defendant. From an order and judgment of the district court sustaining the demurrer, this appeal is taken. We have carefully examined the complaint, and have no hesitancy in saying that each count or subdivision states a good cause of action. It is true that there is much matter in the complaint that might well have been left out, but objection to this should have been raised In another way. The objection of nonjoinder is not well taken. Non constat, from anything in the complaint, that there was either a water master or water district in the precinct or county where the subject of litigation is situated. Counsel, both in their briefs and in their arguments, raise questions which we deem of too much importance to be decided in a case which does not present them in a manner which would give our decision greater weight than mere dicía. The judgment of the district court is reversed, and cause remanded, for further proceedings in accordance with this opinion. Costs to appellant.

Morgan, C. J., and Sullivan, J., concur.