delivered the opinion of the Court—-Terry, C. J., concurring.

This is an action for the diversion of water, and the main question was the privity of appropriation. On the trial the plaintiffs offered one Howe as a witness. He was sworn on his voir dire, and upon the facts stated by him on his examination, was objected to as incompetent because interested, and excluded by the Court. The correctness of this ruling is impeached by the appellants, and is the first error assigned. The facts which determine this question of the interest of the witness are these: Witness was, in 1854, an owner in the Yuba Ditch Company, in respect to the water of which this suit is— in 1854 till 1856—was also an owner in a ditch called the Kimball Ditch, from July, 1853, till August, 1854; sold his interest in the Yuba River Ditch Company to Harlow Kimball; the witness’ interest in the Kimball Ditch was sold by the Sheriff; sold interest in the Yuba Ditch Company in July, 1856—latter part of it; don’t know exactly the date. Being asked as to the extent of his interest in the Yuba Ditch, the witness stated: “We were partners, and took up the water; I owned one-half of it then; that was what I supposed when we took it up; I sold my whole right then; I could not tell how much I did own, for I never had paid a cent on it.” “ There was a dispute about the water of the Yuba Ditch, or a part of it, when witness sold; made a deed to Kimball, when he sold it; was paid for it; was paid *45 by note about first of April, 1858, between first and fifteenth; took no mortgage or other security. Being asked how he came to settle and take the note just before the trial in this suit, in April, 1858, answered: “ I was not able to go on with it, and I told them if they would pay me seven dollars per day I would take it and release them, and have no claim on the ditch; bargain made with Harlow Kimball; the note given, witness supposes, "was to enable him to testify; Kim-ball, Johnson and Hickok gave their notes; Kimball sold to Johnson and Hickok two-fifth interests the day witness sold to them; never had a settlement from the commencement of the ditch; they were owing witness $1,000; claimed to hold the ditch for his debt—for work on it; never been paid a dollar; Kimball and Hickok told me to bring in account, and they would settle it.” On cross-examination, witness said: “ In April, 1858, was not interested then or after the deed was made. No other interest than the claim for this money; no mortgage or other security for this money; the deed of the Yuba Ditch Company to Kimball was made for the purpose of Kimball’s transferring a portion of witness’ interest to Johnson and Hickok for heavy indebtedness due from witness and Kimball as owners of the Yuba River Ditch. Kimball, at the time witness transferred to him, transferred two-fifths of this ditch to Johnson and Hickok, and they canceled all the indebtedness due from witness and Kimball; sold out all his (witness’) right, because witness was in debt on it, and could not go on with it”—“was it understood that both were to be responsible for debts? thinks things got were charged to Kimball. Witness never paid anything; Kimball paid all that was paid; witness had ran behind all the time. When we first took the ditch my share was one-half, and when it ran behind I never could exactly know what it was; deeded to Kimball one-half; did it to cover the greatest interest witness ever had; the deed to Kimball and from Johnson and Hickok all parts of the same transaction; so understood to be beforehand; was to give witness seven dollars a day for all the work witness had done from the commencement, and to assume the debts.”

The deposition of the witness was taken, and tended to prove facts material to the issue in support of the plaintiffs’ action. This deposition being offered by the plaintiffs, was objected to by the defendants *46 upon the showing made on the voir dire, and also for another reason, which it is not necessary to consider, as it is embraced in the answer of the witness. The plaintiffs offered in rebuttal an entry made in this case at the April Term, 1858, to this effect: “ On motion of plaintiffs’ attorneys it is ordered, that plaintiffs have leave to strike from their complaint their claim for damages previous to July 19th, 1856—the date of Howe’s deed to Kimball.” But no amendment to the complaint in this respect seems to have been made. The plaintiffs also offered a paper in these words: “ The plaintiffs in the above entitled cause release and remit to the defendants in said cause all claim and demand for damages contained in their complaint for the whole of the month of July up to the first day of August, A. D. 1856.

(Signed) Kimball & Co.

By their Attorneys, H. I. Thornton, Jr., and J. R. McConnell.”

And filed it among the papers in the cause.

The declaration is for damages for the diversion of water fay 1855 and succeeding years.

It is unnecessary to consider these matters subsequent to the taking of the deposition which was introduced to give it effect. The mere order permitting an amendment of the complaint was of no effect unless and until complied with. The release or remittitur was of no force, even if the attorneys at law signing it had any legal authority to execute it, which, to say the least, is extremely questionable: for the plain reason that to make the testimony of the witness admissible, he must have been competent at the time of the taking of his deposition. It is of no importance that he is competent afterwards, as it is the effect of the interest on the witness which disqualifies him. Whether he was interested or not depends on the issue; that issue, in this case, upon the pleadings, was the title to damages arising from a diversion of water before 1856; and this question, of course, depended upon the ownership of the water, such ownership following from the fact of prior appropriation. The question of interest then rests on this: Would the witness have gained or lost by the verdict ? *47 It seems that he and Kimball were joint owners before the date of the deed to Kimball, in July, 1856. For an injury to or an appropriation of the common property, while they were such joint owners, these owners were entitled to damages. If a recovery had been had by one, the benefit would have resulted to both. The partner or tenant in common would have held these damages in trust for both, just as if the defendants had voluntarily paid the amount of these damages to one of these owners. The sum so paid would have been the property of both. The subsequent deed to Kimball, though it carried the property and the future use of the water, did not retroact and carry the right to damages for the past illegal use of it, any more than a deed to land carries the remedies for past trespasses. An ingenious argument is made by the appellants’ counsel to show that by the failure of Howe to pay his proportion of expenses, the estate he had was forfeited as on a condition subsequently broken, and that all remedies and rights touching the estate, by relation, attach to the other party. We are unable to see the force of the argument. It is equally unfounded in law and in fact, for here there was no original, independent estate in Kimball; he made no deed or contract on condition subsequent. If not estopped by the deed from Howe to deny Howe’s title, the facts sufficiently show, notwithstanding his not very satisfactory explanations, that Kimball and Howe were partners in this adventure, with equal rights in the subject of it, and it is evident that the mere failure of one partner to pay his proportion of expenses, or of the debts of the concern, does not forfeit his rights in the common property. We think, in the aspect in which this witness presented himself, it is the case of one partner suing for an injury done to the firm property, and calling the other as a witness to prove his case.

The argument founded upon the peculiar nature of this property is more subtle than sound. It is true that the mere right to water is a sort of incorporeal thing; but the water itself is substantial and tangible, and as the right gives the control and possession of this commodity, and entitles the party to damages for its diversion by another, we do not see why this right may not be acquired by two or more acting together, or why, when they do acquire it, they do not hold it as other property, and may not sue as such for any unlawful interference with it.

*48 The Court, therefore, did not err in excluding this deposition. Nor do we see in the statement of this witness, when properly construed, any evidence of abandonment. Howe and Kimball acquired this property as partners; for a sufficient consideration one relinquishes to the other his interest in the joint property. The nature of the property has no effect on the transaction. It is the common case of a bargain and sale by one partner to another, none the less partaking of the nature of a bargain and sale, because the selling‘partner was indebted to his associate on account of the firm business, and, for this purpose, makes the sale.

The next question is, whether the verdict is so clearly against the weight of evidence, that we are called upon to reverse the judgment of the District Court before whom it was given, and grant a new trial ? This Court has so frequently held that it would only interfere in extraordinary cases with the decisions of. the lower Courts in this respect, that it is useless to repeat the rule laid down. It is almost impossible for an Appellate Court to satisfy itself in a decision upon such matters—so much depends upon the manner, bearing, character of witnesses, and the peculiar circumstances which the transcript fails to preserve, which give value and weight to testimony.

The main question was as to the priority of location of this ditch, and this depended very much upon the general fact whether the plaintiffs had done such acts in 1854 as would, in August, 1855, when they completed their ditch to the water in dispute, entitle them to invoke the doctrine of relation, and get in, in advance of the actual appropriation of the water by the defendants; and upon this question there was no little conflict in the proofs. The conflict is in respect to the dates and character of the particular acts from which the appropriation is inferred. If there were no other circumstances of conflict than those contained in the testimony of James as to the time of marking the trees, this would, perhaps, be sufficient to be left to the jury for them to determine the weight and effect of the proofs. But there are various other matters of more or less weight, such as the admissions of Howe and the like.

The points made by the appellants question the propriety of certain instructions given, and of the refusal of other instructions asked.

*49 A large number of instructions were given by the Court, and several refused. Those given are expressed with great clearness and precision. They embody the law as ruled by this Court, and propositions necessarily resulting from those settled heretofore. Several instructions were refused by the Court. They are marked seven, eight and nine of the list of those asked for by the plaintiff. The seventh instruction was to this effect: That if the plaintiffs did, in the Summer of 1854, acquire a right to the water in dispute, then the law presumes they retained the right so by them acquired, and the burthen of proving an abandonment on their part is with the defendant. This was refused, because there was no testimony showing that in 1854 the plaintiffs had acquired any such right. The instruction, as it stood, was at least ambiguous, and calculated to mislead. The right of the water did not, in strictness, accrue until the completion of the ditch—though the initiatory steps in 1854 might, by force of the subsequent event, have given title as against a subsequent appropriation from 1854, if done in that year. But this general language, though proper in some sense, was calculated to convey a wrong impression, as the jury might have inferred that these acts, of themselves, gave a right to the water. When the Court gave its reason for withholding the instruction, the appellant, if he desired the charge as to the abandonment to be given to the jury—for the Court had fully instructed the jury as to the other portions asked — should have removed this objection to it. Indeed, it is not clear that the whole substance of the legal portion of this charge had not already been given.

The eighth and ninth instructions are, in substance, that the jury should not regard any proof offered of abandonment, inasmuch as no such defense as abandonment is specifically set up in the answer. The complaint is general, not setting forth the character of title, or the facts constituting the title of plaintiff. It avers, in general terms, that “ on or about the month of July, 1854, the said plaintiffs and their predecessors claimed, located, appropriated and became the owners of, and became entitled to the possession, use and enjoyment of, for mining purposes, the water and waters flowing,” etc. The answer denies this general averment. Thus is put in issue the very question of title, and this involves necessarily the due prosecution of the work after the *50 appropriation, or, in other words, after the indication by some palpable and unequivocal outward sign of the intent to appropriate. The title to the water does not arise, as we have intimated before, from the manifestation of a purpose to take, but from the effectual prosecution of that purpose. This prosecution, therefore, is a necessary element of a title, and the negation of this, the abandoning of the purpose, is not so much matter in avoidance of a title; as it is matter showing that no title was ever obtained. Besides, if parties go to issue, in actions of this kind, upon general averments and denials of title, we think that anything that legally supports or attacks the title is admissible in evidence, and may be applied by the jury to sustain or defeat it.

The other instructions are not liable to serious objection. Indeed, we may remark that all the instructions given by the Court seem not only prepared with remarkable care, but that they present, with extraordinary clearness and accuracy, the various questions of law, bearing on the case, to the jury.

The judgment is affirmed.