Lwein v. Simpson

Miller, J., delivered the opinion of the Court. The motion to dismiss this appeal must be overruled. The certificate of the clerk, appended to the record, that — 481 — it was through his inadvertence and misplacing of the papers, that the record was not sent up within the six months, not being controverted, gratifies the 16th Rule regulating appeals. It is unlike the case of Hannon vs. Robey, 9 Gill, 440. There the certificate of the clerk was to the effect that the record was detained by order of the appellant’s counsel, and this Court refused to recognize it as evidence, on the motion to dismiss. As the law then stood, the delay in the transmission of the record, where the appeal was taken in due time, was presumptively the fault of the clerk, and not of the appellant. Under the present rule that presumption is reversed, and now the delay is presumed to be the fault of the party and not of the clerk. The appellant must now show the delay was occasioned by the neglect, omission or inability of the clerk, and where he shows this by the clerk’s own certificate to that effect, it is sufficient, unless what the clerk states is disputed or controverted by the appellee, in which case the question must be determined upon affidavits taken under the order of this Court. This suit was brought by the appellant against the appellee, to recover damages for injury done to his land by the overflow of water backed upon it from the defendant’s mill-pond. It is one of that class of actions where damages can be recovered only down to the time of instituting the suit. The suit was instituted on the 16th of November, 1870, and tried in March, 1872. During the progress of the trial eight exceptions were taken by the plaintiff, all of which, except the fifth, are to rulings rejecting evidence. It appears from the testimony admitted and proffered on the part of the plaintiff, that the land now owned by the plaintiff, and the mill-site now owned by the defendant, formerly belonged to David Sampson and Nicholas Sampson, his son, the latter owning the mill-site, but not exactly of the same extent as at present; that Royston — 482 — purchased the mill property from the son, but when negotiating for the purchase refused to buy, unless the father would convey to him as much of his land as was necessary for the mill-pond at its upper end; that all three of them then met on the property, agreed upon what land was necessary for the pond, made a survey, or had one made, put down stones and fixed boundaries showing the limits of the pond, and deeds were thereupon executed to Royston by the father and son separately, the latter conveying the mill-site as he had owned it, and the former the additional land agreed upon at the head of the pond. These deeds are not in the record, but it is stated that the stones and boundaries above referred to are mentioned in them. From this it may be inferred these deeds, and especially that from the father, which seems to be the one of most importance in this controversy, were conveyances of a mill-site and property, and a piece of land by metes and hounds, and among the boundaries called for are the stones and maple-trees spoken of by the witnesses. Royston seems to have held the property as he purchased it, for some time, and then sold and conveyed it to the defendant. This conveyance is not in the record, and it does not appear (if it were material it should) how it describes the property, whether by simple reference to the deeds from the two Sampsons, or otherwise. The plaintiff became purchaser of the residue of the land owned by Sampson, the father, and he insists the defendant has no right, by raising his mill-dam or otherwise, to cause the water to flow back upon his land beyond these boundaries. This statement of the case is not derived from admitted facts, nor from any clear and consecutive narrative contained in the record, but from the testimony set out in the several bills of exception as offered and admitted, or proposed and rejected. We have made it as showing our understanding of the nature of the controversy and points in dispute, and shall proceed to dispose of, as far as can — 483 — now be done, the questions presented by the several exceptions. In order to make out his case and recover more than nominal damages, it was incumbent upon the plaintiff to prove to the satisfaction of the jury, that the water did flow back upon Ms land, that this was caused by the wrongful acts of the defendant, and that he had suffered some injury therefrom prior to the institution of this suit. It was his right to offer any evidence which tended to prove these points. Any testimony pertinent and relevant to these questions was pertinent and relevant to the issue, and should have been admitted. If the questions propounded to the witness Eoshall in the first and second exceptions had been answered as the plaintiff's counsel assumed they would be, and the answers followed up by other evidence as proposed, in our opinion the testimony thus elicited would have been relevant and admissible. It would have shown what was the grade of the plaintiff’s land, how abruptly or gradually its surface ascended from the edge of the water. It would have corroborated other testimony, showing the land was capable of being drained and cultivated, and to what extent, if the water was confined within the limits contended for by the plaintiff, and to what extent the over-flow interfered with such drainage and cultivation. It was the right of the plaintiff to submit all the evidence he could adduce on these points to the jury, by whom it was material to be considered in estimating the damages. The fact that what was offered and rejected might be cumulative did not render it inadmissible. Nor does the fact that the witness saw the stage of the water in various parts of the ditch in reference to which the questions were asked him, subsequently to the commencement of the suit, alter the case. It was proposed to connect it with proof showing that the same condition as to the grade of the land existed antecedently to the suit, that the surface of the land had not changed — 484 — since that time. This, and not to énáble the jury to give damages for any injury sustained’since the action, w’a‘s, as we understand it, the purpose of the proffered testimony. Confined to this purpose, it was admissible, and the witness should have been allowed to answer the questions. So if the question asked the witness Jourdan in the third exception had been answered in the affirmative, and followed up as proposed, the testimony would not only have been admissible for the same purpose, but would also have tended to prove another material part of the plaintiff’s case, viz : that the water did over-flow his land prior to the bringing of this action. It was an indirect hut not an inadmissible mode of proving that fact. We are therefore of opinion'the rulings in these three exceptions are erroneous. The ruling in the fourth exception is entirely correct. The defendant, when on the stand as a witness, was asked by his counsel if he recollected an interview between himself and Royston, in which the latter pointed out on the ground the boundaries of the land,'and if so whether the conversation took place before or after he purchased the property? to which he replied, that Royston pointed out the boundary stones, but it was after be bought the land and paid for it. He was neither asked to repeat, nor did he in fact, detail any part of the conversation that took place between them at that time. The plaintiff, therefore, had no right to require of him to' state all the conversation ’ that then occurred between them on the ground that the witness had already stated part of it. It is’ not a case illustrating the familiar rule of evidence. One of the purposes for which1 the rejected testimony in ihe sixth exception was offered, is as stated, not to contradict the deeds, “but to show the extent of the water-right under said deeds, and to show that the water-right under said deeds did’ not' authorize the overflow of water beyond the boundaries named in the said deeds.” — 485 — Though the deeds are not in the'1 record, it is quite clear they must speak for themselves on this subject. For this purpose the testimony was altogether inadmissible. But it was also offered “"for any other purpose in the cause which did not vary the purport of said deeds,” and it has been suggested in argument at the bar, that it was admissible to rebut the claim to the right of flowage by prescription, which the defendant had set up. If such a claim was in fact preferred, (and that it was, may perhaps be fairly inferred from the testimony offered by the defendant in the first part of this exception,) then, in our opinion, this testimony was admissible. But, this may be made more apparent upon another trial, and if the defendant shall then distinctly assert a prescriptive right of flowage in those under whom he claims title, it will be competent for the plaintiff to offer the testimony in this exception as tending to rebut and overthrow that righf. We are unable to perceive any ground upon which the testimony offered in the seventh exception could be admitted. It appears to us to be entirely irrelevant arid inadmissible for any purpose, and was properly rejected. The testimony offered in the eighth exception was clearly such as the plaintiff ought to have offered in chief. It was in no sense rebutting testimony and was properly rejected at that stage of the trial. From the fifth exception it appears that while the defendant was upon cross-examination as" a witness, the plaintiff’s counsel were busily engaged in writing down the exact language of the witness, with a view to contradict him, when the defendant’s counsel objected to the time being consumed in this way, and the Corirt decided it would not wait to allow the plaintiff’s counsel time to write down this evidence, and to this ruling this exception was taken. It is manifest that this is one of those matters which must be left to the discretion of the Judges who preside at trials and cannot be reviewed on appeal. — 486 — The practice of interrupting the progress of a trial to enable examining or opposing counsel to write down the very words of all the witnesses, a practice which, when insisted on, Judges are very reluctant to interfere with and stop, is often productive of great expense as well as tedious and unnecessary delay in nisi prius trials. In some cases it may defeat the ends of justice. It not unfrequently happens that the very rapidity of question and answer, especially on cross-examination, is the only mode of eliciting the truth. It is in this way that truth may be wrung from the lips of a prevaricating and unwilling witness, and the falsehood and studied fabrication of a dishonest and untruthful one, be detected and exposed. In such cases to allow delay for the purpose of having each question and answer written down by the opposing counsél, would often defeat the very ends and purposes for which the important right of cross examination is given. But whether the examination be a cross-examination, or in chief, the conduct of the trial in this respect must rest with the discretion of the presiding Judges. Delay should be granted or withheld according to the importance of the cause and the testimony being given. Before careful and attentive Judges, injurious mistakes in this particular will rarely occur. But as we have said, in no case is such delay a matter of right in counsel, which, if denied, can be made the subject of appeal and review by this Court. (Decided 2nd July, 1873.) Judgment reversed, and new trial awarded.