Jackson v. Feather River & Gibsonville Water Co.

Baldwin, J. delivered the opinion of the Court—Terry, C. J. concurring. 1. We do not see in the Respondent’s brief any notice of the point argued by the Appellant, that this Court should look into, and determine this case in reference to the exceptions taken by Respondent. It is not necessary for us to consider theft point. Our practice, however, has been to look only to the errors assigned by the Appellant. 2. On the trial of this case, which was for injury sustained by [22] the owners of mining claims by the defendants’ ditch, several technical questions arose. The plaintiffs offered to introduce two bills of sale to the premises injured—one made by Huntoon & Co. to John Oornaek, for one-fifth of five mining claims in G-ibsonville, known as Bead, Thompson & Bockwell’s Claims—which paper is called Exhibit, Ho. 1, and is attested by one Wentworth. The objections were: 1. Its execution was not properly proved. 2. That it was not under seal. It seems that the subscribing witness was shown to be out of the State, and his handwriting was proven. The execution by Huntoon & Co. was also proven. This was enough. There is nothing in the objection of a want of a seal, which goes to the admissibility of the paper, whatever might be the effect of it. The plaintiffs claimed to be in possession. It could not be improper, and might have been important, to show that they were in possession bona fide, under a claim of right, and with title to occupy and enjoy the property. Indeed, we are unable to see why, upon questions as to the occupancy of public mineral land, a transfer of the right of the occupant to the possession—which is about all his claim to it—is not as good for all purposes, to the vendee taking possession, when evidenced by an agreement, as by a deed. 8. The plaintiffs offered Exhibit, Ho. 2, being a like bill of sale from Kimball, Perry & Co. to the Simpson Mining Co. dated in 1856. One Tabor was a subscribing witness. The plaintiffs proved the signature of Tabor, and the execution of the paper by the firm of Kimball, Perry & Co. The defendants showed that, after the institution of the suit, and near the time of the trial, Tabor was in the State, and no efforts seem to have been made to get his testimony. On this ground, the Appellant insists the bill of sale was not properly proved. We think the objection not good. We have been referred to no authority which holds to an exclusion of this secondary evidence, on the ground of a want of diligence in getting the proof of the absent subscribing witness before he departed the Statej and the adoption of such a practice would not only make the rule uncertain, but lead to a great deal of unnecessary trouble. The proofs of the execution of papers are usually formal matters, and it would [23] be much better, probably, as a general rule, to simplify and facilitate the mode of proof than to restrict it. 4. The next objection is, that the claims in this bill should have been first identified. The bill itself refers to them sufficiently to show their general description, and if it required further proof to locate or define them, such proof is admissible for that purpose. Wo would not reverse because the Court refused to interfere with the plaintiffs’ order of proof, no injury appearing to be done by such refusal—as, indeed, could scarcely be. 5. We have had more difficulty as to the fourth assignment of errors. This consists of the refusal of the Court to permit the defendant, on the cross-examination of the witness, Gerslin, to put the question, “Whose water was that you saw splashing over the flume ? ” The plaintiff had, in the examination in chief, asked the question, “Did you see water splashing over the flume?” And to this inquiry, an affirmative answer was given. The pertinency of the evidence is seen in the fact, that the action is brought to recover damages for the overflow or leakage of the water from the ditch, it falling upon, and injuring, the claims of the plaintiff; the gravamen of whose right to recover was the injury resulting from this cause, which he alleged was a negligent use of defendants’ ditch. This negligence and damage were denied, and were put in issue by the pleadings; and the defendants, it seems, wished to show that this injury arose from the acts of others, for which they were not responsible. Whether the question propounded tended to that result with much directness or significance or not, it bore to some extent upon the inquiry. But, apart from this, it is contended that the question was within the legitimate bounds of a cross-examination. The plaintiff contends now, not that the question was not relevant, or the answer important, but that it was asked inopportunely. He argues that this was matter of defense, and that the defendant had not opened his case at the time the question was asked; and he quotes Greenleaf, Section 447, to this effect: “A party who has not opened his own case, will not be allowed to introduce it to the jury by cross-examining the witnesses of the adverse party; though, after opening it, he may cross-examine them for that purpose.” We do not think the Respondent can maintain his position. [24] In the first place, the right of cross-examination is one of the most important privileges pertaining to a trial of an issue of fact. It exists, and ought to exist, in great latitude, for it is the only effectual shield against perjury, and the only sure means of eliciting the whole truth. We are inclined to agree with the counsel for the Appellants, that Courts are apt to take too narrow a view of the rights of the examiner in such cases, and to give too extended a scope to the rule that a cross-examination is to be confined to the subject matter of the evidence in chief. Undoubtedly, the cross-examination cannot go beyond that matter ; but it ought to be allowed a very free range within it. In order to this, the witness may be sifted as to every fact touching the matters as to which he testifies, so that his temper, leanings, relations to the parties, and the cause, his intelligence, the accuracy of his memory, his disposition to tell the truth, his means of knowledge, his general and particular acquaintance with the subject matter, may be fully tested. Much must be left to the discretion of the counsel upon this subject. When the witness testified to the breaking of the water over the flume, on cross-examination, everything was proper and germain in regard to the water, the quantity, the force, the quality, the times; and even the ownership, where the water came from, how it was conducted or let off, and who turned it in. But the question was proper in another respect. The defendant would seem to be charged by this overflow; it was a mere denial, not new matter of defense, to show that this overflow was not occasioned by Ms acts or Ms negligence, but by the acts or negligence of another; for the defendants are only held by their own acts of negligence or commission. So that this matter was, at least, as much in rebuttal of plaintiff’s case as setting up his own: We do not understand the doctrine of Greenleaf to go farther than this: that if the defendant sets up a defense not necessarily involved in the denial of the plaintiff’s case, but consisting of new matter, that then the defendant must wait until after his opening before he offers proof of this new matter. But the rule is wholly different when all the defendant, on cross-examination, wishes to disprove, by the plaintiff’s witness, is the very case that witness has made. [25] We cannot see clearly that the defendants were not injured by this error. They might not have been5 but the rule is, that every error is prima fade an injury to the party against whom it is made, and it rests with the other party clearly to show, not that probably no hurt was done, but that none could have been, or was, done by the error. We regret to bo obliged to send this case back on so small a point, but so the law, as we read it, ordains. Judgment reversed and cause remanded.