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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

, 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 plaintiff's in it 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 lit 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

is riparian to the creek. * Without 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 saici creek for purposes of irrigation except what might be interred 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 Cal. 553, 30 Pac. 1108; also Smith v. Hawthe upper proprietor and his permitting the kins, 120 Cal. 86, 52 Pac. 139, and Steinwater to pass down to the lands of the low- berger v. Meyer, 130 Cal. 156, 62 Pac. er owner cannot make the user of the lower | 483. In all these cases the judgment was owner adverse or strengthen his claim of ap- set aside because of uncertainty. In the propriation or prescription. The complaint case at bar the judgment can never be alleges no priority of user of said waters for legally enforced because of its uncertainty domestic purposes, over the defendant. We do as to the amount of water defendant must not think the court erred in failing to make a let pass to the riparian lands of plaintiffs finding of the said allegations. The plaintiffs and it could not be pleaded as an estoppel (secwere entitled to a judgment restraining the tion 1908, Code Civ. Proc.) because the rights defendant from diverting all the water from of neither party are fully determined thereby. said creek for irrigating his said land ri- There are other errors complained of, mostparian to said creek.

ly in relation to the findings, but, as the The plaintiffs having an equal right to take judgment must be reversed and a new trial the water, and it being admitted that at times had, we will not consider them. there is abundance of water flowing in the The judgment and order are reversed, and creek to supply their wants and the defend- the case sent back for a new trial, and it is ant for irrigating his alfalfa, and plaintiffs suggested that the pleadings be so amended claiming that at times only enough for the that the court upon a new trial may be able use of plantiffs, it becomes necessary to know to determine specifically the relative rights of just how much water must flow down said the parties. creek to their lands, for they are entitled to just so much and the defendant to so much.

We concur in the judgment: CHIPMAN, A judgment which enjoins the defendant

P. J.; MCLAUGHLIN, J. 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

(4 Cal. App. 352) to and upon the riparian lands of plaintiffs

LADD v. MYERS. (Civ. 265.) described in the amended complaint in this (Court of Appeal, Second District, California. action in a sufficient quantity to supply plain

Oct. 16, 1906.) tiffs with fresh water for their natural wants 1. PLEDGES – WHAT CONSTITUTES — AGREEand usual domestic purposes, including the

MENT TO PLEDGE.

The payee of a note in the hands of a watering of live stock kept or maintained by pledgeholder to secure another obligation having plaintiffs upon their said respective lands," purchased property under an agreement to exeis not a judgment that informs either plain

cute his note therefor and secure it by his inter

est in the pledged note, in company with the tiffs or defendants just what to do. It must

seller requested the pledgeholder to hold the be observed that there is no adjudication note as collateral to the two claims against watever as to the amount of water the plain

the payee, and pay them out of the proceeds

thereof. Held to constitute an actual pledge tiffs will need, no mention of the number of

to the seller and not an agreement to pledge. stock to be watered, and no means is provided

[Ed. Note.-For cases in point, see Cent. Dig. in the judgment by which the defendant can vol. 40, Pledges, $ 34.] determine just how much water he must let

2. BILLS AND NOTES-ASSIGNMENT-PLEDGED flow down the creek in order that plaintiffs NOTES--EXTENT OF PLEDGE. may have their proper and necessary amount One who accepts an assignment of a pledged of water. The judgment is fatally uncertain,

note in the hands of one holding the pledge

as security for two claims of different perand, although it follows the findings, it gives sons, takes it burdened with both claims, and no information as to the quantity of water cannot, by failing to make inquiry, occupy the which is due to plaintiffs. In Riverside Wa

position of an innocent purchaser without notice.

ag to one of such claims. ter Company v. Sargent, 112 Cal. 230, 44 Pac.

3. APPEAL-REVIEW-HARMLESS ERROR-COR560, which was an action to determine the

RECTION OF FINDINGS. relative rights of plaintiffs and defendants There is no prejudicial error in the correcto the use of water flowing in the Santa

tion of a clerical error in the findings where,

owing to the fact that it does not affirmatively Anna river, the court said: “The decisions of

appear that findings were not waived, the judgthis court establish that, in cases like the ment is supported in the absence of findings. present, the findings and judgment must fix the extent of the superior right, viz., the

Appeal from Superior Court, Orange Counquantity of water to be allowed to the party ty; Z. B. West, Judge. whose claim is paramount, otherwise the

Action by C. B. Ladd against John W.

Myers. From a judgment in favor of dejudgment fails to attain the certainty necessary to an estoppel upon the main subject of

fendant, plaintiff appeals. Affirmed. the litigation:” Citing Dougherty v. Haggin, M. C. Hester, for appellant. Scarborough 56 Cal. 522; Alhambra Water Company V.

& Forgy, for respondent. Richardson, 72 Cal. 604, 14 Pac. 379; Lakeside Ditch Company v. Cram, 80 Cal. 182, 22 ALLEN, J. Action originally brought by Pac. 76; Barrows v. Fox, 98 Cal. 63, 32 Pac. plaintiff against defendant bank to recover 811; Lillis v. Emigrant Ditch Company, 95 a sum alleged to be in the hands of said bank due plaintiff. Defendant Myers, being made

(7 Cal. Unrep. 309) a party, answered, claiming such funds.

PINNDY V. WILSON et al. (Civ. 250.) Thereupon the defendant bank deposited the

(Court of Appeal, Third District, California. same in court, and, upon the trial, findings

Sept. 25, 1906.) and judgment went for defendant Myers.

NEW TRIAL-EVIDENCE. Plaintiff appeals from such judgment, and

In an action for compensation for the from an order denying a new trial.

sale of mining claims for $235,000, where The facts are these: One Heart, the owner plaintiff's witnesses testified that 10 per cent. of a promissory note for $2,000 theretofore was a reasonable compensation, and defendant

testified that he offered $7,500, and that plainexecuted by one Newton, placed the same in

tiff offered in writing to take $10,000, but no the hands of the First National Bank of San

such writing was introduced in evidence, and ta Ana, as pledgeholder, to hold the same as there was a verdict for plaintiff for $7,500, collateral to an obligation owing from Heart

an award of a new trial to plaintiff was not an

abuse of discretion. to one Walker, with instructions upon collection to pay Walker a specified sum and the

[Ed. Note.--For cases in point, see Cent. Dig.

vol. 37, New Trial, 88 130, 146–148.] balance to Heart. Afterwards Heart purchased certain personal property from defend

Appeal from Superior Court, City and ant Myers, and, in consideration thereof, County of San Francisco; Carroll Cook, agreed to execute his promissory note to

Judge. Myers for $1,000 and secure the same by his Action by George M. Pinney against Hominterest in the Newton note, and accordingly, er Wilson and others. From an order grantin company with Myers, visited the bank and ing plaintiff's motion for a new trial, dedirected the cashier thereof to hold the New- fendant Homer Wilson appeals. Affirmed. ton note as collateral to the Walker and

Gavin McNab, for appellant. Geo. M. PinMyers claim, and out of the proceeds pay such

ney and Carter, Rickets & Dolph, for reclaim. Afterwards Heart made a written as

spondent. signment of said Newton note to plaintiff, and, when the bank collected the Newton note, plaintiff demanded the proceeds there

BUCKLES, J. This was an action to reof in excess of the amount required to pay

cover the sum of $10,000 as a reasonable comthe Walker claim. The bank declined to rec- pensation for plaintiff's services rendered in ognize plaintiff's claim as superior in right procuring a purchaser for the defendant's to that of Myers, and plaintiff brought this mining claims, situated in Trinity county, action against the bank, which brought the

known as the Chloride-Baily, Jenny Lind, and funds into court for distribution under its Maple group of mines. The action is based order. Myers having been made a party and on a written promise, contained in a letter having filed his answer, upon the trial the

written by defendant to plaintiff, “to pay court found the facts as above set out, and you a reasonable compensation for such servdirected judgment for Myers to the extent

ice." In another part of the letter he says: of the note held by him so executed by Heart. "To pay you such compensation as in equity

Appellant's chief point is that the evidence and good conscience you are entitled and the is insufficient to support the findings. There margin. of profit therein will permit.” The is nothing in this contention. The evidence case was tried with a jury, which returned is clear and convincing as to the agreement a verdict in favor of the plaintiff in the sum between Heart and Myers, and upon the faith of $7,500, and judgment was given for that of which Heart obtained the possession of amount. Plaintiff moved for a new trial, personal property for which the $1,000 note which was granted, and defendants appeal was given. It was not an agreement for a from the order granting a new trial. pledge, but an actual pledge. Plaintiff, when At the trial it was shown that plaintiff inhe purchased the note in the hands of the troduced to Wilson (defendant and appellant) pledgeholder, took the same burden with the one Charles Sweeny, who purchased of Wilactual agreement under which the pledge- son the said mines for $235,000. Every witholder held the same as collateral, and can- ness produced for the plaintiff testified that not, by avoiding inquiry into the extent of

10 per cent. on the amount for which mining the pledge, occupy the position of an innocent property should sell was a reasonable compenpurchaser without notice.

sation for the services in finding a purchaser: There was no prejudicial error in the ac

There was no testimony on the part of detion of the trial court in correcting a clerical fendant, except that given by defendant himerror in the findings. It does not affirmative.

self. He testified that when he gave plaintiff ly appear that findings were not waived; the letter referred to, in which he promised hence, the judgment is supported even in a reasonable commission, he offered to give the absence of findings. Mulcahy v. Glazier, the sum of $7,500; that he considered it rea51 Cal. 626; Baker v. Baker, 139 Cal. 626,

sonable. Then, when the sale was made, he 73 Pac. 469.

testified that plaintiff came to him and offerWe find no prejudicial error in the record,

ed to take $10,000 for the services rendered. and the judgment and order are affirmed.

Defendant said this offer to take $10,000 was

contained in writing brought to him by the We concur: GRAY, P. J.; SMITH, J. plaintift. 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.

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.

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

LOEIIR v. LIGHT. (Civ. 272.) (Court of Appeal, Second District, California.

Oct. 16, 1906.) APPEAL-FINDINGS OF COURT-CONCLUSIVENESS.

It being the province of the trial court to determine the weight and sufficiency of the evirlence 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, 8 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.

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 I

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. Hcld, that an order of the court, limiting the time of the argument to 194 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.]

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, ind that this may be shown both by the prosecutrix, and those to whom the complaint is made. While such evidence would ordinarily he 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 gestæ; it is only a fact corroborative of the testimony of the complainant.” 3 Greenleaf on Ev. $213. It 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 occurreal. 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 Euriquez, the dė. fendant 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 defenilant'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 prej. udice 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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