Egbert W. Cook, Appellant, v. Harlan P. Spaulding, Respondent

Egbert W. Cook, Appellant, v. Harlan P. Spaulding, Respondent. (Submitted April 10, 1873; decided May 6, 1873.) This action was brought to restrain defendant from flowing the lands of' plaintiff, by means of a dam upon the premises of the former'; plaintiff claiming that defendant raised the water higher than he was entitled to by his deed, which was denied by defendant. This was the issue in the case. Plaintiff’s testimony tended to show that one Hammond, the original grantee, who had a right in his deed to keep the dam and-to flow the lands of plaintiff as then used and exercised, and through whom defendant derived title, while he, owned the premises, raised the dam. No proof was given that any other grantee had done so. Howard, a grantee of Hammond, "was called for defendant, and testified while he owned the land he did not raise the dam. Upon cross-examination, he was asked whether he had had trouble with plaintiff about raising the water, which was, upon objection, excluded. Held, no error; that the witness had given no material evidence ; and the proposed evidence, if designed to impeach' him, was irrelevant and immaterial; that the" court might have supposed the proposed evidence was intended to give, collateral confirmation of plaintiff’s case, by showing that plaintiff insisted, when Howard owned, that his (plaintiff’s), rights were invaded; and in this view the „ evidence was incompetent against defendant; and that if the object of the proposed evidence was simply to show hostile feelings on the part of witness, that should have been clearly stated, or the form of the question should have been such as to disclose that object. John 0. Strong for the appellant. Lewis <& Owrney for the respondent. [MAJORITY — Per Curiam] Per Curiam opinion for affirmance. All concur. Judgment affirmed. .