Jackson v. Feather River & Gibsonville Water Co.
Before: Baldwin
Synopsis
It Ras been the practice of the Supreme Court to examine the case only upon the errors assigned by the Appellant, and not to look into the exceptions taken by Respondent.
A bUl of sale of a mining claim is sufficiently proved when the handwriting of the subscribing witness, who is absent from the State, and the execution by the vendor, is proven. And this, though the subscribing witness was in the State after suit instituted, and near the time of trial, and plaintiff used no efforts to get the testimony of the witness before he left the State.
It is no objection to such bill of sale that it is not under seal, whatever may be the effect of it as evidence.
Upon questions as to the occupancy of public mineral land, it seems that a transfer of the occupant’s right of possession may as well be by simple agreement as by deed, the vendee taking possession.
Complaint gives a general description of mining claims. The execution of a bill of sale of the claims having been proven, plaintiff offers the paper in evidence, defendant objecting, that the identity of the claims in the paper with the claims in the complaint should first be shown. Held, that the paper was admissible, as also further proof to locate the claims if requisite. And, further, that the Court will not control the order of proof, unless some injury will be done.
Cross-examination cannot go beyond the subject matter of the evidence in chief, but should be allowed a very free range within it.
Action for damages to a mining claim by overflow and leakage from defendant’s ditch. To question by plaintiff to one of his witnesses, “ Did you see water splashing over the flume ?” he answered, “Tes.” Defendant, on cross-examination, proposed to ask, “ Whose water was that you saw splashing over the flume ?” field, that the [question was proper, even though it went to the ownership of the water.
That the overflow, or leakage, was occasioned, not by the acts or negligence of the defendants, but by the acts or negligence of another, was matter of denial simply, not new matter of defense, to be proved only when defendants opened their case.
When defendant, on cross-examination of plaintiffs’ witness, simply aims to disprove, by the witness, the very case the witness himself has made, the rule of excluding such evidence until defendant opens, has no application.
Every error in the Court below, in the rejection of evidence, is prima facie an injury, and it rests with the other party clearly to show that no hurt could have heen, or was done, by the error.
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
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