Priest v. Union Canal Co.

The opinion of the Court was delivered by Mr. Justice Terry. Mr. Chief Justice Murray concurred. This was an action to determine the right to the use of water, plaintiffs claiming by virtue of prior appropriation. The ease was tried below by a jury, and judgment rendered in favor of plaintiffs. Exceptions were taken on the trial to the admission of testimony, to show that plaintiffs had, before the construction of defendants’ canal, bargained for lumber, and posted notices of their intention to enlarge their ditch, so as to appropriate all the waters flowing in the stream at its head. Whether this testimony was admissible or not, it is not necessary for the purposes of this case to inquire, for the reason that the verdict of the jury clearly shows, that defendants were not prejudiced by it, and where it is evident that no injury has been done, the admission of improper testimony is no ground for disturbing a verdict. It is also contended, that the Court erred in allowing plaintiffs, after defendants had closed their evidence, to introduce a witness for the purpose of showing that defendants had, subsequent to the completion of plaintiffs’ ditch, extended their canal so as to carry off the water of the south branch of the canon, which had been before appropriated by plaintiffs; first, because it was new evidence, not rebutting, and upon a point not before testified to; and second, because there was no allegation in the complaint as to said connecting canal. ' It is well established that a Court may, in the exercise of a sound discretion, permit a party at any time before the case is submitted, to supply an omission in the testimony occasioned by mistake or inadvertance, and unless it appears that injustice has been done by the abuse of this discretion, the admission of such testimony is no ground for reversal. As to the second objection, the complaint alleges that plaintiffs are entitled, by virtue of prior appropriation, to all the water flowing in the canon at the head of the ditch, and that defendants diverted the water to their damage. This allegation was sufficient for the information of defendants, and it was not necessary to state whether the water was supplied at that point by one or more smaller streams. From a careful investigation, we conclude that there is no error sufficient to disturb the judgment; it is therefore affirmed with costs.