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fendant from so diverting such quantity of the waters of said Conn creek for the purposes of irrigation as will prevent said creek from flowing to and upon the riparian lands of plaintiffs in quantities sufficient to supply plaintiffs with fresh water for their natural wants and usual domestic purposes, including the watering of live stock kept or maintained by them on their said riparian lands." The court does not find the amount of water each riparian owner is entitled to, but finds the defendant's diversion and use of said waters for irrigation purposes (one-half or one-third) as shown by defendant's answer and by the evidence is not reasonable, and, if continued, would cause plaintiffs irreparable injury. The judgment enjoins defendant from diverting the waters of Conn creek from the natural channel thereof upon his lands for the purposes of irrigation at such times, or in such quantities or amounts, or in such manner, as will prevent such waters from flowing to and upon the riparian lands of plaintiffs in a sufficient quantity to supply plaintiffs with fresh water for their natural wants and usual domestic purposes, including the watering of live stock kept or maintained by the plaintiffs on their said riparian lands.

All the testimony for the plaintiffs showed that the water ran in the channel of Conn creek in abundance for their use for domestic purposes and for watering their stock for all the years up to 1902 and that, during 1902 and 1903, and until the suit was commenced in September, 1903, the water ceased to run by their lands about July and August of those years, and was not sufficient for all their needs. There was no substantial conflict in the evidence for the plaintiffs. The testimony for the defendant showed that defendant put in his first dam at his place in July, 1902, and during 1902 he took out about one-third of the volume of the water flowing in the said creek. When cutting the alfalfa, the water in the fiume was allowed to run on to waste land. Irrigated about 20 acres of alfalfa. His flume connected with an old ditch which he cleared out and which he testified looked like it had 20 years' growth of brush, etc. Never used the water much on other places than alfalfa, but let it run on one place below his cellar and on another place for pasture. He testified: "During July and August the amount flowing in Conn creek gradually lessens, but there is a large flow all summer and as soon as the days begin to get cooler and the nights get longer the water in the creek begins to rise." This testimony applies simply to conditions existing on defendant's land. "All the water that passes my dam and all the water that flows or seeps back from the alfalfa patch flows down. Conn creek into the lands of plaintiffs. * * * This irrigated tract * * * is on the northeast side of Conn creek and *

Without

is riparian to the creek. irrigation, it would be impossible to keep the alfalfa alive."

Appellant claims error because the court did not find on certain issues raised by his answer. There is no specific finding as to this allegation in the answer, to wit: "That it is necessary for defendant to use said waters on said land in order to keep the alfalfa growing on said irrigated tract alive, and, if said water is not used to a reasonable extent upon said lands, great and irreparable injury will result to this defendant thereby." If it was not necessary to irrigate the land then clearly defendant had no right to divert the water of the creek onto it. And, if the court's view that the lower riparian owners had the paramount right to all the water flowing in said creek, then this allegation of the answer would become an immaterial allegation and no finding would be necessary thereon. Louvall v. Gridley, 70 Cal. 511, 11 Pac. 777. There was no testimony of a prior use by defendant or his predecessors of the waters of said creek for purposes of irrigation except what might be inferred from what defendant said about running the water he diverted into a ditch which had a 20 year old growth of brush in it, and we think it can be hardly be said that this bit of testimony furnished any evidence that defendant's predecessors in interest had ever diverted these waters for purposes of irrigation. The court found as follows: "Before the diversion of water of said creek by defendant for a period of 20 or 30 years the water of said creek had always flowed to and upon the lands of all these plaintiff's, so that during the dry season every year there was maintained on their said premises abundant fresh water for domestic purposes, including the watering of their stock." Then in its conclusions of law finds: "The rights of plaintiffs to a sufficient flow of water of Conn creek *** in the natural channel thereof to and upon the riparian lands of plaintiffs *** in a sufficient quantity at all seasons of the year sufficient to supply plaintiffs with fresh water for their natural wants and usual domestic purposes, including the watering of livestock kept or maintained by plaintiffs upon their said riparian lands are primary and paramount rights to the right of defendant to divert or use any of the waters of said Conn creek for the purposes of irrigation." If the law is as the court thus finds, then no matter how it may have found as to said allegation the judgment must have been for plaintiffs. But we do not so understand the law. The rule seems to be as laid down in Bathgate v. Irvine, 126 Cal. 135, 58 Pac. 442, 77 Am. St. Rep. 158, and Hargrave v. Cook, 108 Cal. 72, 41 Pac. 30, 30 L. R. A. 390. In the first case it was said, approving the latter case, that a lower riparian proprietor cannot acquire a right, either by prior appropriation or by prescription or adverse user, as against an upper riparian proprietor whose rights antedate the appropriation and

user, and the mere nonuser of the water by the upper proprietor and his permitting the water to pass down to the lands of the lower owner cannot make the user of the lower owner adverse or strengthen his claim of appropriation or prescription. The complaint alleges no priority of user of said waters for domestic purposes, over the defendant. We do not think the court erred in failing to make a finding of the said allegations. The plaintiffs were entitled to a judgment restraining the defendant from diverting all the water from said creek for irrigating his said land riparian to said creek.

The plaintiffs having an equal right to take the water, and it being admitted that at times there is abundance of water flowing in the creek to supply their wants and the defendant for irrigating his alfalfa, and plaintiffs claiming that at times only enough for the use of plantiffs, it becomes necessary to know just how much water must flow down said creek to their lands, for they are entitled to just so much and the defendant to so much. A judgment which enjoins the defendant from diverting such waters "for the purpose of irrigation at such times or in such quantity or amount, or in such manner as will prevent the waters of said Conn creek from flowing to and upon the riparian lands of plaintiffs described in the amended complaint in this action in a sufficient quantity to supply plaintiffs with fresh water for their natural wants and usual domestic purposes, including the watering of live stock kept or maintained by plaintiffs upon their said respective lands," is not a judgment that informs either plaintiffs or defendants just what to do. It must be observed that there is no adjudication whatever as to the amount of water the plaintiffs will need, no mention of the number of stock to be watered, and no means is provided in the judgment by which the defendant can determine just how much water he must let flow down the creek in order that plaintiffs may have their proper and necessary amount of water. The judgment is fatally uncertain, and, although it follows the findings, it gives no information as to the quantity of water which is due to plaintiffs. In Riverside Water Company v. Sargent, 112 Cal. 230, 44 Pac. 560, which was an action to determine the relative rights of plaintiffs and defendants to the use of water flowing in the Santa Anna river, the court said: "The decisions of this court establish that, in cases like the present, the findings and judgment must fix the extent of the superior right, viz., the quantity of water to be allowed to the party whose claim is paramount, otherwise the judgment fails to attain the certainty necessary to an estoppel upon the main subject of the litigation:" Citing Dougherty v. Haggin, 56 Cal. 522; Alhambra Water Company v. Richardson, 72 Cal. 604, 14 Pac. 379; Lakeside Ditch Company v. Cram, 80 Cal. 182, 22 Pac. 76; Barrows v. Fox, 98 Cal. 63, 32 Pac. 811; Lillis v. Emigrant Ditch Company, 95

Cal. 553, 30 Pac. 1108; also Smith v. Hawkins, 120 Cal. 86, 52 Pac. 139, and Steinberger v. Meyer, 130 Cal. 156, 62 Pac. 483. In all these cases the judgment was set aside because of uncertainty. In the at bar the judgment can never be legally enforced because of its uncertainty as to the amount of water defendant must let pass to the riparian lands of plaintiffs and it could not be pleaded as an estoppel (section 1908, Code Civ. Proc.) because the rights of neither party are fully determined thereby.

There are other errors complained of, mostly in relation to the findings, but, as the judgment must be reversed and a new trial had, we will not consider them.

The judgment and order are reversed, and the case sent back for a new trial, and it is suggested that the pleadings be so amended that the court upon a new trial may be able to determine specifically the relative rights of the parties.

We concur in the judgment: CHIPMAN, P. J.; MCLAUGHLIN, J.

(4 Cal. App. 352) LADD v. MYERS. (Civ. 265.) (Court of Appeal, Second District, California. Oct. 16, 1906.)

1. PLEDGES - WHAT CONSTITUTES - AGREE, MENT TO PLEDGE.

The payee of a note in the hands of a pledgeholder to secure another obligation having purchased property under an agreement to execute his note therefor and secure it by his interest in the pledged note, in company with the seller requested the pledgeholder to hold the note as collateral to the two claims against the payee, and pay them out of the proceeds thereof. Held to constitute an actual pledge to the seller and not an agreement to pledge. [Ed. Note.-For cases in point, see Cent. Dig. vol. 40, Pledges, § 34.]

2. BILLS AND NOTES-ASSIGNMENT-PLEDGED NOTES--EXTENT OF PLEDGE.

One who accepts an assignment of a pledged note in the hands of one holding the pledge as security for two claims of different persons, takes it burdened with both claims, and cannot, by failing to make inquiry, occupy the position of an innocent purchaser without notice as to one of such claims.

3. APPEAL-REVIEW-HARMLESS ERROR-CORRECTION OF FINDINGS.

There is no prejudicial error in the correction of a clerical error in the findings where. owing to the fact that it does not affirmatively appear that findings were not waived, the judgment is supported in the absence of findings.

Appeal from Superior Court, Orange County; Z. B. West, Judge.

Action by C. B. Ladd against John W. Myers. From a judgment in favor of defendant, plaintiff appeals. Affirmed.

M. C. Hester, for appellant. Scarborough & Forgy, for respondent.

ALLEN, J. Action originally brought by plaintiff against defendant bank to recover a sum alleged to be in the hands of said bank

due plaintiff. Defendant Myers, being made a party, answered, claiming such funds. Thereupon the defendant bank deposited the same in court, and, upon the trial, findings and judgment went for defendant Myers. Plaintiff appeals from such judgment, and from an order denying a new trial.

The facts are these: One Heart, the owner of a promissory note for $2,000 theretofore executed by one Newton, placed the same in the hands of the First National Bank of Santa Ana, as pledgeholder, to hold the same as collateral to an obligation owing from Heart to one Walker, with instructions upon collection to pay Walker a specified sum and the balance to Heart. Afterwards Heart purchased certain personal property from defendant Myers, and, in consideration thereof, agreed to execute his promissory note to Myers for $1,000 and secure the same by his interest in the Newton note, and accordingly, in company with Myers, visited the bank and directed the cashier thereof to hold the Newton note as collateral to the Walker and Myers claim, and out of the proceeds pay such claim. Afterwards Heart made a written assignment of said Newton note to plaintiff, and, when the bank collected the Newton note, plaintiff demanded the proceeds thereof in excess of the amount required to pay the Walker claim. The bank declined to recognize plaintiff's claim as superior in right to that of Myers, and plaintiff brought this action against the bank, which brought the funds into court for distribution under its order. Myers having been made a party and having filed his answer, upon the trial the court found the facts as above set out, and directed judgment for Myers to the extent of the note held by him so executed by Heart. Appellant's chief point is that the evidence is insufficient to support the findings. There is nothing in this contention. The evidence is clear and convincing as to the agreement between Heart and Myers, and upon the faith of which Heart obtained the possession of personal property for which the $1,000 note was given. It was not an agreement for a pledge, but an actual pledge. Plaintiff, when he purchased the note in the hands of the pledgeholder, took the same burden with the actual agreement under which the pledgeholder held the same as collateral, and cannot, by avoiding inquiry into the extent of the pledge, occupy the position of an innocent purchaser without notice.

There was no prejudicial error in the action of the trial court in correcting a clerical error in the findings. It does not affirmatively appear that findings were not waived; hence, the judgment is supported even in the absence of findings. Mulcahy v. Glazier, 51 Cal. 626; Baker v. Baker, 139 Cal. 626, 73 Pac. 469.

We find no prejudicial error in the record, and the judgment and order are affirmed.

We concur: GRAY, P. J.; SMITH, J.

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In an action for compensation for the sale of mining claims for $235,000, where plaintiff's witnesses testified that 10 per cent. was a reasonable compensation, and defendant testified that he offered $7,500, and that plaintiff offered in writing to take $10,000, but no such writing was introduced in evidence, and there was a verdict for plaintiff for $7,500, an award of a new trial to plaintiff was not an abuse of discretion.

[Ed. Note.--For cases in point, see Cent. Dig. vol. 37, New Trial, §§ 130, 146-148.]

Appeal from Superior Court, City and County of San Francisco; Carroll Cook, Judge.

Action by George M. Pinney against Homer Wilson and others. From an order granting plaintiff's motion for a new trial, defendant Homer Wilson appeals. Affirmed.

Gavin McNab, for appellant. Geo. M. Pinney and Carter, Rickets & Dolph, for respondent.

BUCKLES, J. This was an action to recover the sum of $40,000 as a reasonable compensation for plaintiff's services rendered in procuring a purchaser for the defendant's mining claims, situated in Trinity county, known as the Chloride-Baily, Jenny Lind, and Maple group of mines. The action is based on a written promise, contained in a letter written by defendant to plaintiff, "to pay you a reasonable compensation for such service." In another part of the letter he says: "To pay you such compensation as in equity and good conscience you are entitled and the margin of profit therein will permit." The case was tried with a jury, which returned a verdict in favor of the plaintiff in the sum of $7,500, and judgment was given for that amount. Plaintiff moved for a new trial, which was granted, and defendants appeal from the order granting a new trial.

At the trial it was shown that plaintiff introduced to Wilson (defendant and appellant) one Charles Sweeny, who purchased of Wilson the said mines for $235,000. Every witness produced for the plaintiff testified that 10 per cent. on the amount for which mining property should sell was a reasonable compensation for the services in finding a purchaser. There was no testimony on the part of defendant, except that given by defendant himself. He testified that when he gave plaintiff the letter referred to, in which he promised a reasonable commission, he offered to give the sum of $7,500; that he considered it reasonable. Then, when the sale was made, he testified that plaintiff came to him and offered to take $10,000 for the services rendered. Defendant said this offer to take $10,000 was contained in writing brought to him by the plaintiff. No such writing was offered in

evidence. We do not think there was any abuse of discretion in granting the new trial. The order granting the new trial is affirmed.

We concur: CHIPMAN, P. J.; McLAUGHLIN, J.

LOEUR v. LIGHT. (Civ. 272.) (Court of Appeal, Second District, California. Oct. 16, 1906.) APPEAL-FINDINGS OF COURT-CONCLUSIVE

NESS.

It being the province of the trial court to determine the weight and sufficiency of the evidence offered where there is testimony tending to support a finding, it will not be disturbed on appeal.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 3, Appeal and Error, § 3979.]

Appeal from Superior Court, San Bernardino County; Frank F. Oster, Judge.

Action by William Loehr against J. E. Light. From a judgment for plaintiff and an order denying a new trial, defendant appeals. Affirmed.

Henry M. Willis, for appellant. Curtis & Curtis, for respondent.

ALLEN, J. There is nothing presented in the record other than specifications of error based upon the insufficiency of the evidence to support certain findings. An examination of the record discloses that a conflict in the evidence exists in relation to each and every of such findings. It is the province of the trial court, which has before it the witnesses, to determine as to the weight and the sufficiency of the evidence tendered, and this court, under the well-established rule, where there is testimony in the record tending to support any particular finding, will not disturb the same upon appeal.

The judgment and order are therefore affirmed.

We concur: GRAY, P. J., SMITII, J.

(4 Cal. App. 314)

PEOPLE v. FERNANDEZ. (Cr. 29.) (Court of Appeal, Third District, California. Sept. 26, 1906.)

CRIMINAL LAW - LIMITING ARGUMENT OF COUNSEL-DISCRETION OF COURT.

A trial for assault on a female child with intent to rape lasted five days. The testimony occupied 350 pages of the transcript. The evidence was conflicting. The testimony of the child raised the question whether it could be safely considered. Held, that an order of the court, limiting the time of the argument to 14 hours to each side, was an abuse of discretion requiring a reversal on it appearing that the counsel for defendant objected thereto, and showed that he could not complete his argument within the time limited, though he was allowed 20 minutes additional time.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 14, Criminal Law, § 1657.]

Appeal from Superior Court, Merced County; E. N. Rector, Judge.

A. Fernandez was convicted of an assault on a female child with intent to rape, and he appeals. Reversed and remanded.

Ben Berry and F. G. Ostrander, for appel

U. S. Webb, Atty. Gen., for the People.

CHIPMAN, P. J. Defendant was charged by information with having feloniously assaulted one Stephini Granado, a female child about 7 years old, with intent to commit rape. He was convicted, and sentenced to imprisonment in the state prison for the period of six years, and appeals from the order denying a new trial, and from the judgment of conviction.

1. It appeared by evidence that the child was living with her uncle, Eduardo Enriquez, and his wife, Altagratio Enriquez. Some time after the noon hour of October 17, 1905, Eduardo was at his work of clearing some ground from timber near his home, and, needing the help of his wife, called her to him. Soon thereafter she returned to the house, and, looking in, saw a man apparently in sexual contact with this child. The wife called to her husband, who came at once. The man ran away as soon as he was surprised by Altagratio. One of the strongly contested facts in the case, as to which the evidence is by no means clear, was whether either the husband or wife recognized the alleged assailant of this child. Altagratio testified that she saw the accused in the act of making the assault, and testified to circumstances tending to corroborate the fact of an assault being made at the time. The husband and wife went to the girl, and at once chastised her for her conduct, and began interrogating her as to the facts. Over the objection of defendant the witness Altagratio was permitted to testify to what the child told her of the occurrence. She testified: "I scolded the little girl, and told her, and I asked her what had happened her, and why she hadn't called me. Then she told me that this man had told her -then the little girl told me she hadn't called because this man had put an axe to her head, and told her not to call. Mr. Ostrander (attorney for defendant): We move to strike it out if the court please, upon the ground this is hearsay. The Court: The motion will be denied. Mr. Hoar (prosecuting attorney): Did the child tell you what the name of the man was that was with her? Mr. Ostrander: We, of course, interpose our objection to that on the same line. I want to make it specific everywhere. The Court: Yes. Mr. Ostrander: And we except. The Witness: Yes, sir; because none of us have seen him before this Sunday. Q. When did the child tell you what the name of this defendant was? A. Why, at the same moment, because I wanted to know.

Q. Was it immediately after you discovered the defendant? A. Yes, immediately after 1

saw the dirty act because I thought he had killed the little girl like any villain with a child might do. Q. What did the little girl tell you the name of the man was? A. Albero" (the first name of defendant). The motion to strike out was not directed to any particular part of the witness' answer, part of which as given in the record, was free from the objection. The court and counsel probably understood that the objection was made to the hearsay statement, and the record would seem to warrant our treating the objection as directed to that particular statement above the threat made by her assailant. The point, however, arises also on the question as to the name of the girl's assailant where the objection was specific. The evidence shows that the witness saw enough herself, if the jury believed her, to establish the assault, and that what the child told the witness was in response to questions asked by Mrs. Enriquez after the assailant had fled. The rule on this subject is well settled, and has been often approved of by our Supreme Court. It is found stated in People v. Lambert, 120 Cal. 170, 52, Pac. 307, People v. Wilmot, 139 Cal. 103, 72 Pac. $38, and in many earlier cases cited in these two cases. It was said in People v. Wilmot: "It is well settled that in prosecutions for rape the people may prove that the injured party made complaint of the injury while it was recent, and that this may be shown both by the prosecutrix, and those to whom the complaint is made. While such evidence would ordinarily be hearsay, its admission in this class of cases is justified upon the ground that in such cases, when restricted to the fact of complaint, it is, in the strictest sense, original evidence." Mr. Greenleaf says: "This complaint constitutes no part of the res gesta; it is only a fact corroborative of the testimony of the complainant." 3 Greenleaf on Ev. § 213. was further said in People v. Wilmot: "It is clear that to allow any mere statement of the prosecutrix as to the details of the affair, or as to the name of the person accused by her, to be given in evidence would be to allow hearsay evidence to prove the offense." Citing People v. Lambert, supra. In the present case the reason for admitting proof of the complaint is lacking, for the offense was witnessed by the person to whom it was sought to show what the child said had occurred. No question of force or of consent could arise. as essential to the crime, and no fact to which the child might testify could be corroborated by her hearsay statements beyond the fact of the complaint. Indeed, it can hardly be said that the child made any complaint at all. What she said was drawn from her by the questions of Mrs. Enriquez.

2. Exception was taken to the opening statement of the district attorney, and prejudicial error is claimed for the alleged misconduct. It appeared that defendant, his brother, and two other men were engaged in gathering corn husks not far distant from

the Enriquez house at the time of the assault. Suspicion became directed to these persons in some way, and the sheriff arrested all of them. Enriquez was called upon to point out the one against whom he had made complaint, and defendant was held in custody, and the others released, and went their way. While riding with the sheriff and before the parties separated, the four men, who were Mexicans, were engaged in talking in the Spanish tongue, none of which conversation the sheriff understood. The district attorney told the jury in his address that after the defendant had been separated and taken away by the sheriff it would be proved that the brother of defendant attempted to bribe the complaining witness, Enriquez, to dismiss the case. Also that similar attempts were made by defendant's partner, Rodriquez. It was not claimed by the district attorney that the defendant knew of this, or had authorized any such attempt. And subsequently, when he offered to prove the fact by Enriquez, the defendant objected to the evidence, and the objection was sustained. The district attorney justified his statement and his offer on the ground that agency might be inferred from the fact that while riding along with the sheriff the parties were talking of the defendant's guilt, and that the attempt to bribe Enriquez was the subject of the conversation. Also that the fact that the attempt at bribery having been made by defendant's brother shortly after they had separated was a circumstance corroborative of his agency to make the attempt. All these facts were stated to the jury in his opening statement with considerable amplification, and against defendant's frequent and persistent objection. The court stated that it was difficult to place restrictions upon counsel in making their statements to the jury; that it could not anticipate what connection the evidence might have with the case, or how counsel would connect it; that when offered, the court would then rule upon it, and, in fact, the court did refuse the evidence when offered, and directed the jury to disregard the circumstance. It is not necessary now to hold that a new trial should be granted for this alleged misconduct alone. But we are quite satisfied that the district attorney overstepped the bounds of propriety in stating that he would prove facts, in their nature calculated to prejudice the defendant, which facts he must have known were not admissible as evidence, unless he could connect them with the knowledge and approval of defendant, and this he did not pretend could be done, except from the two circumstances above stated. The court very properly took the view that the jury could not infer from so unsubstantial a basis that defendant had authorized his brother or Rodriquez to commit a felony. But the mischief which defendant sought to prevent was already to some extent done. It seems to us that counsel should, in their opening

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