38 Md. 468 | Md. | 1873
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
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
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
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.”
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.
Judgment reversed, and new trial awarded.