Bond v. Dorn

Crocker, J. delivered the opinion of the Court—Cope, C. J. and Norton, J. concurring. This is an action for damages, caused by the diversion of water. On the trial the plaintiffs were offered as witnesses on their own behalf, under a notice served on the opposite party, in compliance •with the provisions of the amendment of 1861 to Sec. 422 of the Practice Act. The defendants objected, that the notice did not sufficiently specify the points on which the parties intended to be examined. The Court held the notice to be insufficient, and excluded the witnesses. The defendants recovered judgment, a motion for a new trial was made and denied, and the plaintiffs appeal from the judgment and the order refusing a new trial, and assign for error that the Court erred in refusing to permit the plaintiffs to testify.

The notice states that the plaintiffs will offer themselves as witnesses on their own behalf, “ to prove that they (the plaintiffs) are at the present time, and were at the commencement of this suit and prior to that date, the owners and proprietors, and were in the actual possession of the water ditch described in the plaintiffs’ complaint, and are at the present time and were entitled to the use and benefit of the water for mining purposes, flowing in the natural channel of Sherlock’s Creek, about one and one-half miles above its junction with the Merced River, at the commencement of this suit, and that the defendants wrongfully and unlawfully diverted and conveyed away the water flowing in the natural channel of the said Sherlock’s Creek, above the mouth of the plaintiffs’ water ditch aforesaid, as alleged in the plaintiffs’ complaint.” Also, “ to prove their prior rights to the water flowing in the natural channel of the said Sherlock’s Creek, and also the amount of damages they have sustained in consequence of the defendants wrongfully and unlawfully diverting and conveying away the water flowing in the natural channel of the said Sherlock’s Creek, above the mouth of the plaintiffs’ water ditch aforesaid.” We think the notice in this case sufficiently specifies the “ points ” on which the party intends to be examined. It is not necessary to state each particular fact, or all the evidence in full which he intends to state in his testimony. It is sufficient if the notice states the several subjects, or each [116]particular subject matter, respecting which he intends to testify, and the notice in this case does so with sufficient clearness and particularity.

The judgment is reversed, and the cause remanded for further proceedings.