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p. 395TUOLUMNE COUNTY WATER COMPANY v. COLUMBIA AND STANISLAUS RIVER WATER COMPANY. Section four hundred and twenty-one of the Practice Act pro
Headnote
Drake et als. v. Bakin et als. ( 10 Cal., 312 ) affirmed.Appeal from the District Court of the Fifth Judicial District, County of Tuolumne.
This was an action brought by plaintiffs to recover damages for the diversion, by defendants, of the waters of the South Fork of the Stanislaus River, to which plaintiffs claimed to be entitled by priority of possession. Also, for a perpetual injunction restraining defendants from further interference with said water.
Plaintiffs obtained a judgment for damages, and also for one hundred and forty “tom streams” of water; from which they appeal, on the ground that the amount of water awarded, through the admission of improper evidence and erroneous rulings of the Court, was not more than half the amount to which they were entitled.
On the trial, Dr. Pownall, one of the plaintiffs, was called as a witness by defendants. On the close of his examination-in-chief, plaintiffs proceeded to examine him in regard to “various matters pertinent to the issue.” Defendants’ counsel objected, and the Court sustained the objection. Plaintiffs' counsel excepted. The case turned in this Court on this point, which was the fourth error assigned by appellants’ counsel.
H. P. Barber and Tod Robinson for Appellants.
p. 396vides that a party examined as a witness by an adverse party, may be examined on his own behalf “in respect to any matters pertinent to the issue.” This right was denied to us by the Court, and the ruling was erroneous. Drake v. Eakin, 10 Cal., 312 .
James W. Coffroth for Respondents.
Field, J., and Baldwin, J., concurring.
It is unnecessary to examine the various errors assigned in the brief of counsel, as the fourth exception is fatal to respondents’ case, under the decision of Drake v. Eakin, at the present term. On the authority of that case, the judgment is reversed, and a new trial ordered.