#### *Peter M. Clinton*v. *Arthur McKenzie.*

The rules which apply in the examination of a witness, in a great degree, govern the admission .of evidence on the issue. The plaintiff, or actor in the issue, must, in the first instance, produce his whole evidence in support of his case; the defendant must then produce all his evidence; and the plaintiff, in reply, is restricted to such evidence as may go to destroy the case made by the defendant, But these, like other rules for the conduct of the trial of the cause, must be controlled in their application by the discretion of the Judge, so as that they do not operate surprise or injustice.

*Before*Wardlaw, J., *at York, November,*1849.

*Case for overflowing plaintiff's land, by erecting a dam across Beaver Creek, in defendant's land.*

Plea 1. The general issue. *2.*Parol license granted by-Joseph Edwin M’Kenzie, vendor of the plaintiff, when he was owner of the-land now overflowed.

Joseph McKenzie (father of the defendant Arthur, of Joseph Edwin, and of Robert, James M. and David U. McKenzie) was, for thirty and more years, prior to 1837, seized and possessed of lands on both sides of Beaver Creek, above and below a mill seat, as his father had been. In 1806, and before, there were, at the mill seat, a dam and cotton gin, which remained in use until about 1836, when- the house was washed away. Afterwards the old dam was insufficient to hold water, 'and gradually decayed ; but parts of it are still standing.

In 1837, Joseph McKenzie gave and conveyed to his son, Joseph Edwin, the land east of the creek, down to a line which is about two- hundred yards above the dam, except seven acres in a bend of the creek above that line. And, about the samo time, he, gave and conveyed to his. son Arthur the land west of the creek, and that which is east of the creek and below the mill seat, reserving a parcel of eleven acres, which was east of the creek and below Joseph Edwin’s line, and which included the site of the gin house, the yard attached to it,’ and much of the pond. At the survey, the father said to his sons that he reserved the *seat*for himself, that he intended to raise the dam, and they knew that the water would cover more land than it had done, all of which he reserved to himself. No reservation of any right in the lands conveyed by him was, however, made. The father died after he had made some preparations towards erecting a new gin house at the seat.

In May, 1842, the heirs of Joseph McKenzie conveyed the seven acres above mentioned to Joseph Edwin, and the parcel of eleven acres above mentioned to Arthur. In 1843 *37Arthur, the defendant, re-built the dam, and erected a house with machinery for ginning cotton and threshing wheat. The dam, at one end, was .on the exact foundation of the old dam, and it was not much, if at all,- higfier than the old one. About one and a half acres of low ground, on the lands which had been conveyed to Joseph Edwin, was overflowed, and a spring thereon was flooded. In May, 1847, Joseph Edwin, having removed from the State, conveyed by attorney to the plaintiff, without reservation, all the lands conveyed to him as above. The plaintiff soon afterwards required the defendant to let the water off1, and, after the defendant’s refusal, and some unsuccessful attempts made by the plaintiff to cultivate the land, which was liable to overflow, this action was brought.

Besides what is above mentioned, there was testimony on the part of the defendant that Joseph Edwin was present at the rebuilding of the house and dam, and assisted in hauling logs for the machinery, knowing of the use they were to be put to; that whilst he continued owner of the land afterwards, his cotton was ginned and wheat threshed for toll, by the defendant; that, at the rebuilding, Robert McKenzie said to Arthur, in the presence of Joseph Edwin-, “If you cover any of my land, I’ll make you pull your dam down,’’ and Joseph Edwin said nothing, but smiled; that, at the rebuilding, a witness said to Joseph Edwin, “He will put his water on you, won’t he ?” To which Joseph Edwin replied, “ I don’t care; he may raise it as high as he pleases; it will not injure me ; it will do me as much good as him.” That, after the machinery was in operation, and whilst Joseph Edwin was owner of the plaintiff’s land, he said to witnesses, at various times, thai *“*he did not object to the overflow; th'at he never intended to interrupt Arthur about it.” And to David U. McKenzie he said that “ he would not interrupt Arthur, for it was arranged between us all (the brothers) that Arthur should have the machine tract.”

Mr. Adams, a witness for plaintiff, testified that he had suggested to the defendant the propriety of securing the right to overflow; and defendant answered, “It-will never trouble me.” Since the commencement of this suit, witness reminded defendant of this, and told him it would have been well if he had secured the matter before his brother sold. Defendant answered, “I did’ut think he was going to do it.” '

A witness of the defendant testified that plaintiff had said “I was watching for a chance, and was glad- to get hold of the defendant; I bought the land for the express purpose.” To contradict this imputation of spiteful motives in the purchase, Dr. Hunter, who was present át the making of the bargain between the plaintiff and the attorney of Joseph Edwin, was permitted to testify, that the attorney, by the sale, *38relieved himself and some friend from some difficulty, a sure-tyship, or the like; and that the plaintiff had, at the bargain, (when Arthur’s desire to buy up to high-water mark was mentioned,) said to the attorney: “Well, let Arthur have all; but, if he is to have to high-water mark, I would not give ten pence for the land: I don’t want it if the dam is to stand.” The declarations of the attorney and those of the plaintiff, as to the right of overflow, and as to everything but the bargaining, (of which the above mentioned declarations were *res gestee,)*were carefully excluded.

In reply, besides Dr. Hunter’s testimony, above mentioned, the plaintiff adduced only the testimony of Jefferson Clinton, which was as follows :

“ In 1845, whilst Joseph Edwin was owner of the land, he and I were at the spring. He said that Arthur and he had said nothing about putting up the dam: he had thought it would not injure him much, but found he was mistaken. He had thought Arthur would gin and thresh his crops for nothing, but Arthur had not done so, and he was a mind to pull the dam down. He spoke of Ihe spring ruined and corn lost in that dry year; then said, “ he shall not keep it up ; I will be obliged to sell and go, if I can.”

The defendant, in closing his testimony in defence, remarked that the deposition of Joseph Edwin McKenzie was in Court, and plaintiff, if he chose, might introduce it. The defendant’s right to reply in evidence upon the matter of his special plea having been mentioned, he was warned that in the exercise of that right he would be held strictly to a reply. The plaintiff did not offer the deposition of Joseph Edwin. The defendant wished to introduce it as his reply. He commenced to read it, and plaintiff objected that it was not in reply. Having examined it, the Circuit Judge decided that it was not in reply to anything said either by Dr. Hunter or Jefferson Clinton, the only witnesses the plaintiff had adduced since the defence was closed; and so it was not read.

His Honor held that a parol license to overflow, given by the owner of the land overflowed, was (so long as the erections stood, upon which, under the license, money was expended) sufficient to bar the said owner and those claiming under him of recovery'of damages for the overflowing.

He submitted it to the jury to decide whether license had been given by Joseph Edwin McKenzie, as the defendant alleged, being himself of opinion that the fact of license had been established.

In answer to a question on the subject, he said that less than $ 12 24 would not carry costs, as no right of property was in any way set forth in the record, or involved, in the issues. The license, in his opinion, constituting not an easement, but only an exemption from liability for damages.

*39The defendant’s counsel urged upon the jury that the recovery of any, the smallest sum, by the plaintiff, would establish that the defendant had done the injury complained of, and be conclusive of the matters now involyed in all future actions, which the plaintiff might bring for a continuation of the same injury. His Honor assented to this, as a remark suggestive of caution, and not of itself calculated to throw any light upon the questions of fact which were to be decided by the jury.

The jury found for the plaintiff $5 00.

The defendant appealed, and moved the Court of Appeals for a new trial, on the following grounds, viz:

1. Because the defendant was, and still is, protected by law in overflowing the plaintiff’s land, under a parol license from Joseph Edwin McKenzie, the vendor of the plaintiff, which license was fully and clearly proved by several witnesses on the part of plaintiff and defendant, whose testimony was uncontradicted ; and numerous unequivocal acts of the said Joseph Edwin McKenzie, which clearly showed the defendant had expended large sums of money in making ¡sundry valuable improvements under the said license.

2. Because the verdict is not only without evidence, but directly contrary to the evidence, and against the charge of his Honor, and must have been given under some clear mistake, or some other consideration than that of the evidence in the cause.

3. Because the Court erred in permitting Dr. J. B. Hunter, a witness for the plaintiff, in reply, to give evidence of the declarations said to have been made by Joseph G. McKenzie, the attorney in fact of Joseph Edwin McKenzie, and of the plaintiff himself, which, it is submitted, was error, as defendant was not present.

4. Because the Court permitted the plaintiff to prove the declarations of Joseph Edwin McKenzie, the vendor of the plaintiff, as proved by Jefferson Clinton, to prove that Joseph Edwin McKenzie had not in fact given license, under which the defendant claimed the.right to overflow the plaintiff’s land, when the said Joseph Edwin McKenzie had sold and conveyed the premises, by a deed,, with general warranties.

5. Because the Court erred in not'permitting the defendant to reply in evidence on his plea of license, which he had specially pleaded.

6. Because the Court should have permitted the defend-' ant’s counsel to read the deposition of Joseph Edwin McKenzie, and other evidence in reply, on the plea of license, as they understood his Honor when they stopped giving testimony on that point, that, if they desired so to do, they could give it in reply; *this they did*understand, and but for *40that impression or understanding, they would have given that evidence before they closed, as was then stated to his Honor and urged to the Court; and still his Honor sustained an objection of plaintiff’s counsel, and rejected the testimony then offered by defendant; the want of which testimony was much relied on in argument by the plaintiff’s counsel.

7. Because his Honor charged the Jury, that in this action it required $12 24 to carry costs; whereas he should have charged them that any sum “ above four dollars” would carry costs. The Jury found five dollars, thereby intending that each party should pay his own costs.,

8. Because there was no damage proved.

9. Because his Honor did1 not instruct the Jury as to the legal effect of their finding a verdict for a sum less than would carry costs, though it was urged by defendant’s counsel that a verdict for one cent would have the effect of destroying the defendant’s right to keep up his dam for the purpose of propelling his machinery; and, for the want of that instruction, it is believed that the jury erroneously supposed that by giving a verdict for $5, the costs would be divided, and the defendant permitted to keep up his dam as it now stands.

10. Because the finding is contrary to law and evidence, and the charge of his Honor.

*J D. Witherspoon Sp A. W.*Thomson, for the motion.

*G. W.*Williams, contra.

Curia, *per*Frost, J.

It is not necessary for the decision of the motion for a new trial to consider the question, which has been principally urged in the argument, whether the-parol license, which the defendant alleges was given to him, by Joseph Edwin McKenzie, before the construction of his mill dam, to overflow the land of Joseph,,was irrevocable and a bar to an action by Joseph and all persons claiming under him, for any damage which may be sustained by such overflow, so long as the mill erected by the defendant may stand, and be used. On the trial, the'Jury were instructed on this question, as the defendant affirms the law to be. If the instruction were confirmed by the judgment of this Court, the defendant would derive no advantage on a second trial which he had not on the.first.

The defendant was allowed to reply, in evidence, on his special plea of license. When the plaintiff had rested his case, the defendant produced his evidence, in chief, to support the plea of license. This consisted of the acts of Joseph E. McKenzie, from which his license to the defendant to erect the mill-dam might be inferred, aud.of the declarations of Joseph E. McKenzie to several persons, affirming or implying such license. The plaintiff gave in evidence the declarations of *41Joseph E. McKenzie to Jefferson Clinton, negativing the grant of the license. The defendant then offered, in reply, the deposition of Joseph E. McKenzie, to the effect that he' had permitted and consented to the overflow of his land by the defendant’s mill-dam. The Circuit Judge held that the deposition of Joseph E. McKenzie was not properly evidence in reply, and excluded it.

The rejection of this evidence has been strenuously urged as a ground for a new trial, and requires a consideration of the rules and practice which govern the admission of evidence on the trial of a cause.

The rules by which the examination of a witness is conducted, govern, to a great degree, the admission of evidence on the issue. In the cases which will be cited, and- in most of those in which the question is made, it will be seen that the admissibility of evidence in reply, is decided by analogy to the practice in the examination of a witness; and the same test which is applied to determine whether a question put to the witness is proper, in reply, decides whether evidence offered is proper, in reply. The plaintiff, or actor in the issue, in the examination of his witness, is required to elicit and disclose everything material to his case to which the witness can testify. If he omit to interrogate the witness as to any material fact, in the examination in chief, the-question cannot be asked in reply without leave of the Court, When the defendant cross-examines the witness, he must exhaust the subject of his defence, whether the examination be directed to qualify, neutralize or discredit the testimony which the witness may have given on his examination in chief, or to lay the foundation of his defence in any new matter in the knowledge of the witness. The questions of the plaintiff, in reply, are strictly confined to the particulars of the witness’s evidence in the cross-examination.

In like manner the plaintiff must, in the first instance, produce and disclose the entire evidence in support' of his Case; the defendant next offe'rs all his evidence in defence; the plaintiff then replies, and is restricted in the evidence he may introduce, to a direct answer to the defendant’s case. In *Peters*v. *Consequa,*after the defendant had closed,' the plaintiffs offered to examine witnesses as to the custom spoken of by defendant’s witnesses, in relation to the purchasing tea in China, By the Court, 11 In your opening, you examined witnesses on this subject, and, as nothing new in relation to it has been given in evidence, it would be improper in the plaintiffs again to examine witnesses respecting it.” In *Giles*v. *Hills,*Best, C. J., stated the rule (in which C. J., had expressed his concurrence) to be, never to allow a witness to be called back to get rid of any difficulty on the merits, or anything which went to the justice of the case; he *42allowed it to be done to get rid of objections which were bggjde the justice of the case, and little more than mere matter of form. In *George*v. *Radford,*which was an action for malicious arrest, the plaintiff’s counsel had closed his case, and defendant’s counsel had begun *to*address the Jury, when Tenterden, C. J., said he would nonsuit, on the ground that there was no evidence of malice. The plaintiff’s counsel wished to adduce further evidence; but it was refused, the Chief Justice saying, “ If you had more evidence, you should have adduced it before you closed your case. I can’t receive it now. The rule has been relaxed very much, perhaps too much." Rex v. *Stimpson*was an indictment for stealing peas from a granary. The prosecution rested on the fact of the peas being fouud in the house of the defendant. For the defendant, his daughter testified, that he had bought the peas from one Taylor. The attorney for the prosecution offered Taylor asa witness’to prove that the prisoner did not buy the peas from him, but, on the contrary, that Taylor saw the defendant steal the peas, and assisted him in doing so. It was held by Garrow, B., that the prosecutor could only contradict the specific facts testified by the defendant’s daughter; as, that Taylor did not sell the peas, or the like; that, being a witness in reply, his testimony was only admissible so far as it might go to destroy the case set up by the defendant. *Knapp*v. *Marshall,*after the plaintiff had given evidence of the it.ems of his account, and that the charges were reasonable; for the defendant, several surveyors were called, who stated that they had surveyed the work in 1831, and the amount of plaintiff’s charges was £100 too high. The plaintiff offered, in reply, a letter from the attorney of the defendant .to the .plaintiff, stating that the defendant had had a survey of the work, in 1829, and the surveyor thought the charges £60 too high. It was objected that this evidence was not in reply. Tenterden, C. J., held that if the plaintiff meant to rely on this letter, he should have produced it as part of his original case, and the evidence was rejected.

This case presents an extreme, even if it be a proper application of the rule. But, with the other cases, it is cited to show the practice of the Courts in Westminster. Th'e rule is most salutary, in its fitness to prevent trickery, and is necessary, in many cases, to prevent surprise and injustice. Witnesses can with difficulty be kept in attendance on the Court after they have given their testimony, and the defendant might be taken at great disadvantage if the plaintiff were permitted to return to his evidence in chief and renew the attack, after the defendant had closed his case and his witnesses had left the Court. This rule, like many others for the conduct of a trial, cannot, however, be rigorously and uniformly enforced. Much must, of necessity, be left to the *43discretion of the Judge. Whenever evidence has been inadvertently omitted, the uniform practice of our Courts is tov permit the party to supply the omission, unless it is apparent that it will operate injustice to his adversary.

The testimony of Joseph E. McKenzie, that he had given permission to the defendant to erect the dam, did not contradict the evidence of Jefferson Clinton that, on some occasion, McKenzie held the conversation with the witness which he related. The direct effect of McKenzie’s testimony was not to destroy the case made by the plaintiff, but to strengthen the case made by the defendant. McKenzie had been examined by the defendant, and his deposition should have been produced with the other evidence in chief. But the defendant declined to do so, though cautione d that, if not strictly in reply, it would be excluded.

The other grounds of appeal may be briefly disposed of. When the defendant supported his claim to the license entirely by proof of the declarations of Joseph E. McKenzie, it was clearly competent for the plaintiff to offer declarations of McKenzie to the contrary; and when the defendant, in order to reduce the plaintiff’s damages, by showing a malicious design in his purchase of the land overflowed, gave evidence that the plaintiff had said, “he was watching a chance, and was glad he had got hold of defendant — that he had bought the land for the express purpose” — the plaintiff could only reply to this charge of a malicious motive, by evidence of what passed at the treaty for- the purchase. What the plaintiff was then proved to have said formed a part of the *res*gestee, and is not liable to the suspicion of having been said to counteract any indiscreet expressions of ill will towards the defendant. The evidence could not have had much effect; but the question now only concerns its competency.

The grant of a mere license to flow the plaintiff’s land transferred no property. If it were claimed by defendant as an easement, his defence would entirely fail, because an easement can only be created by deed, or arise from prescription. The license could only operate as a *remitter*of damages for an overflow of the plaintiff’s land by the defendant. The plaintiff, then, is not entitled to costs on his verdict tor five dollars.

The motion is dismissed.

Evans, Wardlaw and Withers, JJ., concurred.

*Motion refused.*