Ledu v. Jim Yet Wa
Before: Foote
Synopsis
Water Rights— Appropriation —Statute of Limitations—Evidence in Rebut-tad. —In an action to restrain the diversion of water, tko plaintiff having shown a prior appropriation of the water right by himself, which the defendant attempts to defeat by the plea of the Statute of Limitations, should bo permitted to sho~ in rebuttal that the defendant before any bar of the statute could have attache bad acknowledged bis claim and sought to become bis lessee of the water right
Id.—Adverse Possession—Instructions. — Where the defendant has pleaded adverse possession in himself, it is error to instruct the jury “that if they believe that the plaintiff was the first to appropriate and use the waters in dispute, and that his appropriation and use thereof was prior to that of defendant and those under whom he claims adversely to tho plaintiff, and that his possession was continuous, exclusive, and notorious, and that he has not parted with his right thereto or forfeited the same, they will find for the plaintiff,” for the reason that the instruction would authorize the jury to find for the plaintiff without considering the defense of adverse possession.
Foote, C. This was a case tried by a jury. The plaintiff claimed ownership of a certain water right, the defendant denied such ownership, and set up title thereto in his lessor under the Statute of Limitations. The plaintiff after the defendant closed his testimony in chief, took the stand as a witness, and the following question was asked him:—
“ State whether Jim Yet Wa, defendant, came to see you in May, 1882, and if so, for what purpose, and what took place then?”
The defendant’s counsel objected on the ground that the question sought to bring out evidence not in rebuttal, but in chief, and irrelevant. The court sustained the objection. "Plaintiff’s counsel then stated that he expected to prove and offered to prove by the witness that the defendant had sought him in May, 1882, and offered to lease the water right in question for the season, and that the parties differed as to the price to be paid for it, and the lease was not made. This was objected to and the objection sustained. The plaintiff’s wife was then introduced and sworn as a witness and a similar question asked her. This was objected to and the objection sustained by the court because it was not in rebuttal. To these rulings of the court counsel for plaintiff: duly excepted.
[348]We are of opinion that the court erred in not allowing the questions to be answered, and the evidence offered to go to the jury; the plaintiff had shown a prior appropriation of the water right in himself; the defendant sought to defeat it by holding up the shield of the Statute of Limitations; it was, therefore, competent for the plaintiff as a matter of evidence, in order to meet this defense, to show if he could, that the defendant, before any bar of the statute could have attached, had acknowledged the claim of the plaintiff, and sought to become his lessee for the water right.
The court refused to give the third instruction asked for by the plaintiff, which was in the following language:—
“That if the jury believe from the evidence that plaintiff Jean Ledu was the first, in point of time, to appropriate and use the waters of Humbug Creek now in dispute, and that plaintiff’s appropriation and use thereof was prior in time to that of defendant and those under whom he claims the same adversely to plaintiff, and that plaintiff has not parted with his right thereto or forfeited the same, the jury will find for the plaintiff”; and of its own motion gave the following:—
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