Spivey v. Barwick

122 S.E. 594, 157 Ga. 853, 1924 Ga. LEXIS 264

• Court: Supreme Court of Georgia
• Decided: April 16, 1924
• Docket: No. 3856
• Status: Published

Opinion

Russell, O. J.

1. The plaintiff introduced a large number of witnesses, and closed; two witnesses (not including the defendant himself) had testified in behalf of the defendant, but a number of witnesses for the defendant were present to testify, and the defendant had not closed his testimony in support of his answer, when the court of its own motion directed a verdict contrary and adverse to some of the contentions pleaded by the defendant. This was error. Even if the evidence already adduced up to the time that the verdict was directed demanded the finding, the direction of a verdict before the defendant had completed the introduction of his witnesses and closed was erroneous, because premature. The judgment is controlled by the ruling in McWilliams v. Rome, 138 (Pa. 581 (2) (75 S. E. 645).

No. 3856. April 16, 1924.

2. As a general rule, either party in every cause should be allowed full opportunity to introduce all evidence competent and relevant to support the case alleged by him. A party’s right to introduce witnesses who are present in court should not be abridged, for the one reason, if no other, that such party has no better way of having the competency and relevancy of his testimony determined by the court than by presenting his witnesses and offering their testimony. “Whether, after he has been allowed a full opportunity to introduce all relevant evidence bearing on the issue, he will have made out a case, is a question which will then properly arise.” McWilliams v. Rome, supra.

3. “The owner of land adjoining a non-navigable stream is the owner of the soil to the center of the thread of the stream, and of the fishing rights to the center of the thread on his side of the stream. If one proprietor owns the land on both sides of the stream, he has the exclusive right of fishing therein.

“ (a) The right of fishing is not severed from the ownership of the fee by grant which does not by its terms either expressly convey the right, or necessarily include it, as, for instance, an unrestricted grant of all water rights or privileges.

“ (6) The grant by the owner of the fee of ‘ mill privileges ’ carries the right,to the reasonable use of land and water necessary to the operation of a mill, but does not grant any fishing privileges.” Thompson v. Tennyson, 148 Ga. 701 (98 S. E. 353).

4. Since the cause is remanded, it is unnecessary to rule upon alleged errors which cannot occur upon another tidal.

Judgment reversed.

All the Justices concur. L. G. Underwood, for plaintiff in error. W. J. Wallace and N. L. Gillis Jr., contra.