Street v. . Andrews

Clark, J.: The cause of action alleged was an obstruction placed by the defendant on the upper edge of his land, preventing the free flow of water from the land of plaintiffs just above and ponding it back. The counterclaim attempted to be set up was that the plaintiff had placed an obstruction on the lower edge of his own land, thus diverting water which was thrown upon and water-sobbed defendant’s land. These were two separate and distinct torts. The latter did not “ arise out of the transaction set forth in the complaint,” nor was it “ connected with the subject of the action.” The Code, § 244 (1). It was the subject for an independent action, and was properly disallowed as a counterclaim. Bazemore v. Bridgers, 105 N. C., 191. The testimony as to the ages of the minor plaintiffs was, at most, irrelevant, and as such it is not ground for a new trial, unless it could be seen to have prejudiced the side objecting. It was harmless error. Glover v. Flowers, 101 N. C., 134; Livingston v. Dunlap, 99 N. C., 268; McGowan v. Railroad, 95 N. C., 417; Clark’s Code, 2d Ed., p. 586. *423 The counterclaim having been properly ruled out, it was not error to reject the evidence offered to show the water-sobbed condition of defendant’s land. This evidence could have no bearing upon the allegation of damage to plaintiffs’ land. The deposition was improperly excluded. The return showed that it was taken by the commissioner on the day and at the place mentioned in the notice. There was no evidence offered that it was not taken between the hours mentioned in the notice, and there is no presumption that it was not. It appearing that it was taken on the day, at the place, and by the person designated, the presumption, in the absence of evidence to the contrary, is that all things were done rightly. Gregg v. Mallett, 111 N. C., 76. Where it appears that the deposition was taken on the day named, the presumption, in the absence of evidence to the contrary, is that it was taken between the hours named. Dearman v. Dearman, 5 Ala., 202. If the answers were on a separate sheet attached to interrogatories, but not inserted at the end of each interrogatory, the whole, however, being above the signature of the commissioner, it does not so appear in the record sent here, which must govern us. But if that were so, and was one of the reasons why the deposition was rejected, such rejection was without force and shduld have been disallowed. Downs v. Hawley, 112 Mass., 237. Since there must be a new trial for the rejection of the deposition, it is unnecessary to consider the exceptions to the charge and for refusal of prayers for instructions, as a somewhat different state of facts may be presented on the next trial. New Trial.