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any other person other than S. F. Deardorff. That the said S. F. Deardorff died on or about August, 1901"; allege that on December 4, 1896, said Mary Deardorff executed a trust deed on said lands owned by her (said section 4) and that her said deed to S. F. Deardorff was made subsequently, namely, on August 7, 1897; that she defaulted in the payment of the money secured by said trust deed; that the land was thereafter, to wit, on August 17, 1898, sold pursuant to the trust deed and was thereafter conveyed to said Mrs. A. B. Jones, one of plaintiffs herein, who is now the sole owner thereof.

The court found the facts generally as alleged by defendants; that the said land in section 4 was owned in fee simple absolute by plaintiff Mrs. Jones; that in August, 1897, Mary Deardorff, wife of Samuel, was the owner of said land in section 8, "which land was worked, managed, rented, and looked after by the husband of said owner, the said Samuel F. Deardorff. That while in the management of said land of the said Mary Deardorff as aforesaid, and for the purpose of making the same appurtenant to the said" land in section 8, "the said Samuel F. Deardorff purchased of one Mary E. Kirkendall a right of way for a water ditch over and across" the said land in section 4, "and took the conveyance thereof in his own name for the use and benefit of the said" land in section 8, "then owned by the said Mary Deardorff, and for the use and benefit of the said Mary Deardorff and her grantees." The court found that Mary Kirkendall was, on August 7, 1897, the owner of the land in section 4, subject to the deed of trust as alleged by plaintiffs and that "on said date executed to Samuel Deardorff a conveyance of said right of way so purchased by him as aforesaid, which conveyance was, and is in words and figures following, to wit: "I, Mary E. Kirkendall, of the county of Kings, state of California, do grant unto Samuel F. Deardorff, of the same county and state, a right of way for a water ditch over and across (describing land in section 4) subject to the following reservation and limitations; the said water ditch (describing its dimensions) is not to be used by said S. F. Deardorff, except for the conveying of water to (land in section 8) for use thereon, without the consent of myself or grantee, nor for conveying water to any other person without my consent. The said Samuel F. Deardorff is to keep said water ditch in good order and to use the same so as to do no injury or damage to the adjacent land. I reserve the right to run sufficient water in said ditch at any time to irrigate my own lands situate in and being a part of said quarter section." The court found that immediately after said conveyance was executed the said Samuel Deardorff and his wife, Mary, constructed a ditch along the right of way so conveyed and that they and their grantees have ever since maintained

and kept in good order the said ditch, and the said Samuel and Mary Deardorff and their successors in interest have ever since used and still use said water ditch for said purposes without injury to the adjacent lands; and that plaintiff Mrs. Jones and her predecessors in interest have also used said ditch for the purpose of irrigating said land in section 4; that defendants and Oscar Deardorff are the owners of the land in section 8, and that the water from said ditch is necessary for the production of crops on their said land, and that defendant John Deardorff owns water running through said Settlers ditch. The court also found that plaintiffs have wrongfully obstructed said lateral ditch; also that the deed of the land in said section 4, to said plaintiff Mrs. Jones, coming through the Sacramento Bank by the trustees' sale under said deed of trust, conveyed the land to her, "expressly reserving in its conveyance of said land all water ditches and roads theretofore conveyed." The court found against defendants' alleged prescriptive right and against the alleged bar of the state of limitations. In its conclusions of law the court found: That defendants are the owners of the ditch in question and the right to maintain and keep the same in order and jointly with plaintiff Mrs. Jones to run water through the same and that defendants are entitled to a decree quieting the title in said ditch and to an injunction perpetually restraining plaintiffs from interfering therewith. Judgment was accordingly entered from which and from the order denying their motion for a new trial plaintiffs appeal. It is claimed that the court erred in admitting the deed to Samuel Deardorff. The record fails to show the ground of the objection made when the deed was offered in evidence, and hence the specification raises no question for it cannot be said to have been inadmissible for every purpose. In making objection to evidence the ground must be stated in order that the court may determine whether the ruling of the lower court was correct or otherwise. It is claimed also that the evidence is insufficient to support the following findings: (a) that defendants have a right to maintain a ditch over the land in section 4; (b) that when Samuel Deardorff took a deed for the water ditch across section 4 he did so that the same should become a permanent use or benefit to section 8, or that the ditch ever became appurtenant to said section. The legal proposition upon which appellants rely is: That the grant from Kirkendall to Samuel Deardorff was simply a grant in gross, and was limited as a right in the grantee, and was not intended by either party to become appurtenant to any land; that it was not in the nature of an easement, and hence not an estate of inheritance, but a simple right of way that died with the grantee.

By the terms of the deed to Deardorff, the ditch was not to be used by the grantee "except for the conveying of water to the north half of section 8 for use thereon," unless by the consent of the grantor, Mary Kirkendall. This was a negative form of expressing the right to use the ditch to conrey water to said section. The consent of the grantor was necessary if water was to be conveyed elsewhere. The deed also provided that the ditch was not to be used, without grantor's consent, for conveying water to any other person than the grantee. It is apparently upon this clause that appellants rely to show that the grant was personal only to Samuel Deardorff-or a technical grant in gross. Whether the deed standing alone should be given the construction contended for it is not necessary to decide. Defendants were permitted to show without objection, and it appears by the record, that Mary Deardorff's husband was acting for her in the matter as her agent, and that he took the deed "for the use and benefit of said north half of said section 8"; that his wife, the said Mary, assisted in the construction of the ditch and that they constructed the ditch together conformably to the terms of the deed at a considerable expense to themselves; that the ditch was constructed immediately after the deed was received and that it has been used ever since by Deardorff and his successors in interest, "and they have since maintained and kept in good order the said ditch agreeably to said deed" and that "they (Deardorff and his wife) have since used said water ditch for conveying water to said" section 8 without "injury or damage to the adjacent land." The court found, and the finding is not challenged, that plaintiff Mrs. Jones and her predecessors used said ditch to convey water to their land in section 4. The testimony is not set forth in the transcript; appellants in preparing it have given what purports to be but the legal effect of the testimony. Nor does the bill of exceptions purport to contain all the evidence or the legal effect of it at all. Upon the record before us, however, we think the findings are supported and that the court drew just conclusions from the findings. Mary Deardorff died in 1901, and her husband died in 1902, and defendants succeeded to their interest in section 8 by decree of distribution, and "are now the owners thereof and irrigation thereof is necessary to its proper cultivation" and they "have been wont to run water through said ditch during all the irrigating seasons since the fall of 1902." The cause was tried in November, 1904. "The right of way" and "the right of receiving water from or discharging the same upon land," are among the burdens or servitudes which "may be attached to other land as incidents or appurtenances and are then called easements." Civ. Code, § 811. "A thing is deem

ed to be incidental or appurtenant to land when it is by right used with the land for its benefit." Civ. Code, § 662. The grant in this case created an easement, and the evidence shows that it became appurtenant to defendants' land as the court found. Whether an easement in a given case is appurtenant or in gross is determined mainly by the nature of the right and of the intention of the parties creating it; but the courts favor the construction of grants of these rights as appurtenant rather than in gross, and if the right in question is in its nature an appropriate and useful adjunct of the land conveyed, having in view the intention of the grantee as to its use, and there being nothing to show that the parties intended it to be a mere personal right, it would be held to be an easement appurtenant to the land, and not an easement in gross. 10 Am. & Eng. Ency. (2d Ed.) p. 405; Hopper v. Barnes, 113 Cal. 636, 45 Pac. 874. The deed to plaintiff, Mrs. Jones, is not in the record, but it is stated in the transcript that her grantor, the Sacramento Bank, "reserved in its conveyance *** all water ditches and roads theretofore conveyed," from which it may be inferred that the purchaser at the sale under the trust deed regarded his purchase as subject to the easement created for the benefit of defendants' land. permission given to the Deardorffs, contemporaneously with the grant, to enter upon the land and construct the ditch, and its use by them and their successors in interest for so long a time, without objection, to convey water to section 8, where it was necessary to the proper enjoyment of the land, both by them and their successors in interest, would give rise to a strong inference that the original intention of the parties was that the ditch should become a servitude upon section 4 of which section 8 was the dominant tenement. "The estate of a servitude is determined by the terms of the grant, or the nature of the enjoyment by which it was acquired." Civ. Code, § 806. The judgment and order are affirmed.

We concur: KLES, J.

The

MCLAUGHLIN, J.; BUC

(4 Cal. App. 31)

PEOPLE v. TAYLOR.

(Court of Appeal, First District, California. June 27, 1906.)

1. CRIMINAL LAW-STATEMENTS OF DEFENDANT-SELF-SERVING DECLARATIONS.

Defendant shot deceased while standing on the bank of an irrigation ditch, and in a prosecution for the homicide a witness testified that he, with others, had searched the ditch at the point where the shooting occurred, and found a bullet in the bottom of the ditch which was of the same caliber as the one found in deceased's body; that the search for the bullet was because of a statement made by defendant to witness about having fired a shot into the water. Held, that defendant's statement, made to wit

ness at the time defendant told him of having fired the first shot into the ditch, was a hearsay, self-serving declaration and inadmissible.

[Ed. Note.-For cases in point, see vol. 14, Cent. Dig. Criminal Law, § 933.]

2. SAME-TRIAL-INSTRUCTIONS-OPINION OF

COURT.

Where, in a prosecution for homicide, the judge charged that the jury, and not the judge, were the judges of the facts, and that he did not intend, by giving the instruction, to imply the existence or non xistence of any fact in the case, an instruction that if the jury should find certain material matters as facts beyond a reasonable doubt, and believed from such facts that defendant wrongfully, unlawfully, and unnecessarily brought on the struggle, or became and was the aggressor, and did not attempt to abandon or withdraw from the altercation during which he killed deceased, he could not avail himself of the plea of self-defense, etc., was not objectionable as intimating the judge's opinion on the facts.

[Ed. Note. For cases in point, see vol. 14. Cent. Dig. Criminal Law. §§ 1731-1735, 1758.] 3. HOMICIDE-SELF-DEFENSE

DANGER.

IMMINENCE

OF

In order to justify a killing as committed in self-defense, the danger must have existed. or have reasonably appeared to exist, at the very time defendant fired the fatal shot; defendant's belief that the danger was about to become imminent, or that it would become imminent in the future, being insufficient.

[Ed. Note.-For cases in point, see vol. 26, Cent. Dig. Homicide, §§ 158-163.7

4. CRIMINAL LAW-INSTRUCTIONS-CHARACTER AND NATIONALITY OF PARTIES.

Where, in a prosecution for homicide, defendant's attorney in his argument many times referred to deceased as "this Armenian." and to the defendant as having a father and mother "in the good old state of Missouri," it was proper for the court to charge that the jury had nothing to do with the place of birth or the nationality of deceased, or the situation of the defendant or deceased with reference to their families.

[Ed. Note.-For cases in point, see vol. 14, Cent. Dig. Criminal Law. §§ 1693, 1974-1977.] 5. SAME-REQUEST TO CHARGE-INSTRUCTIONS

GIVEN.

It is not error for the court to refuse instructions requested by accused, the material portions of which are covered by the charge. 6. SAME-VERDICT-AMENDMENT.

Where, in a prosecution for homicide, the verdict as first rendered fixed defendant's term of imprisonment, the judge properly told the jury that it was informal, and instructed them to eliminate the portion fixing the punishment. [Ed. Note. For cases in point, see vol. 14, Cent. Dig. Criminal Law, §§ 2110, 2112.]

Appeal from Superior Court, Fresno County; Geo. E. Church, Judge.

David F. Taylor was convicted of manslaughter, and he appeals. Affirmed.

James A. Burns, E. Klette, and S. J. Hinds, for appellant. U. S. Webb, Atty. Gen., for the People.

COOPER, J. The defendant was charged in the information with having killed and murdered one Bedrosian on the 28th day of June, 1905. The jury returned a verdict of manslaughter, recommending the defendant to the mercy of the court, and he was sentenced to a term of six years in the state

prison. This appeal is from the judgment and an order denying the defendant's motion for a new trial.

The homicide was the result of a dispute as to water rights from an irrigating ditch. The deceased and the defendant each had a right to take certain water from the same ditch, but the trouble arose as to the time at which the water should be taken by each. The defendant could not get water below at times when deceased put extra boards in the headgate and backed the water so that it would flow through a branch ditch onto the land of the deceased, and the deceased could not get the water to his land without putting in the extra boards. The defendant, from his own testimony, appears to have armed himself with a pistol on the morning of the homicide, as he was about to start to the point in the irrigating ditch where the boards had been placed by deceased. He made the declaration that he would have the water if it caused him trouble. When he reached the headgate he took out two boards, the longest one of which he pushed out so it would float away down the ditch. As he was leaving he saw deceased down the road, and went to meet him. Deceased appeared to be in a good humor, and proposed to defendant that they measure the water. They then went together to the ditch, the deceased to his small headgate, and defendant to the large headgate. After deceased put his hand down into the water as if to measure it, he went from the small headgate over to the large headgate, and told defendant that he did not have enough water, and that he was going to put in the boards. Defendant replied that it would be all right, but that deceased would have to take out the boards if defendant had to flood the ditch to make him do it. Defendant testified that deceased had a shovel in his hands, and swore at defendant, calling him names, raising his shovel and striking at defendant, hitting his hands. The defendant then describes the subsequent events as follows: "I drew my gun from my hip pocket. I had carried that pistol ever since the 6th of January. Had been in the custom of carrying a pistol. I carried it for sport. When I pulled the revolver from my pocket. I put it over in my left hand and fired a shot down into the water. I did that as I thought probably I would run a bluff on him. I did not shoot at him. Could have shot at him if I had wanted to. When I fired the pistol he kind of dodged down, just kind of pitched the shovel back that way like. He kind of raised up then, and wanted to know what I meant. I said: 'I mean I don't want any more trouble with you.' Then I pointed the pistol in his face that way, and told him to stand back. He just kind of stepped back, probably one step, but a little towards the fence, a little northeast. I thought the trouble was all over with, and he holloed to some one, called him 'Paul' or 'Izer,' or something of that kind. I stuck

Defendant

the pistol in my hip pocket. I thought I would go across the ditch and get my wheel. I jumped from the running board of the drop onto the bank. As I reached the ground he grabbed me. I whirled around facing him. I struck him a couple of times with my left hand. He caught me at that time so I couldn't use my right hand. I hit him on the breast or ribs. *** While we were seutling there, I took the gun out of my pocket with my left hand. I put it over in my right hand; passed it in front of him to my right hand or around his neck. I told him, if he did not let loose of me, I would shoot. *** At the time the shot was fired Paul was coming through the fence. I didn't aim to fire the shot just at that instant, but I would have had to fire in a second or two. When the shot was fired Bedrosian let loose of me. I ran out in the road." admitted that in the preliminary examination he testified as follows: "I didn't think there was any necessity for defending myself with the gun. * * * The reason why I drew my gun the second time was that I thought I would run a bluff on him. I was not drawing the gun for the reason that I was afraid he was going to hurt me. I am not afraid of any one man. I was not afraid of him then. When I fired the first shot, I then raised the gun up towards him with my left hand. He dodged down and threw the shovel around. that way, and says something or other-I couldn't say what. He seemed so excited; but it sort of tickled me, and I had a kind of grin. I couldn't help it.” The witness Saunders testified that he heard a shot, and looked up and saw deceased have hold of defendant's arm; that he heard deceased say, "Don't shoot! don't shoot!" and that he heard a second shot, and looked and saw deceased just about to the ground, falling. The above is stated for the purpose of more clearly elucidating the points discussed. It is not claimed that the evidence is insufficient to sustain the verdict.

It is urged that the court erred in sustaining objections to questions asked by defendant's counsel in direct examination of the witness Tremper as to what statement defendant made to him at the time defendant told him of having fired the first shot into the water ditch. The court correctly sustained the objections. The witness had testified that he, with others, had searched the ditch at or about the point where the shooting took place, and found a bullet in the bottom of the ditch, which was a 38 caliber bullet similar to the one found in the body of deceased; that the searching for the bullet was because of the statement made by the defendant to the witness about having fired a shot into the water. Counsel say that the object in asking the question was to corroborate the defendant by showing that he made a statement of a material fact, which proved to be true by an examination of the ditch. The court certainly was very liberal

to the defendant by allowing in evidence the portion of the statement made to the witness as to having fired into the ditch. It was not permissible to allow the witness, without any restrictions, to state all that defendant said to him. It was not part of the res gestæ, and was purely hearsay and a self-serving declaration. There was no claim made by the prosecution that the account or statement made by the defendant as to firing the bullet into the water was fabricated, and hence the rule cannot be invoked which, in some exceptional cases, allows statements made by a defendant at or about the time of the act to be received in evidence for the purpose of corroborating the statement or account he has given upon the stand. Where a defendant has given an account of a transaction, and the prosecution has attempted to impeach him by evidence as to a different account of the same transaction made to other parties, the law, in its spirit of fairness to the defendant, allows him to call other witnesses for the purpose of showing that other accounts or statements made by him immediately after the occurrence and while it was fresh in his mind are the same in substance as that given by him as a witness upon the stand. The question in such case is as to the credibility of the defendant or the witness. See People v. Doyell, 48 Cal. 85. In this case there was no such question to which the evidence sought to be elicited would have been admissible.

We have carefully examined the instruction complained of in which the court charged the jury that if they should find certain material matters as facts beyond a reasonable doubt, and that if the jury believed from such facts that defendant wrongfully, unlawfully, and unnecessarily brought on the struggle, or became and was the aggressor, and did not attempt to abandon or withdraw from the altercation, and during the altercation defendant killed deceased. that defendant could not avail himself of the plea of self-defense in case he did so create a real or apparent necessity for the killing, by his own unlawful acts. The objection urged to the instruction is that it "left the jury to infer that although they were the sole judges of the effect and value and weight of testimony, they were listening to a judge who really did have an opinion in regard to the guilt or innocence of the defendant." It is certainly reasonable to infer that the judge really did have an opinion as to the guilt or innocence of the defendant, but we can find no expression or intimation of such opinion in the instruction. Not only this, but the judge said to the jury: "I again charge you that you, and not I, are the judges of the facts in the case; and I do not intend by giving you these instructions to imply the existence or nonexistence of any fact in the case."

The claim is made that it was error for the court to charge the jury that "the danger to the defendant, if any, must have existed, or

have reasonably appeared to exist, at the very time the defendant fired the fatal shot" in order to justify the killing. The portion of the instruction quoted must be read in connection with what is subsequently stated in the same instruction, to wit, "If you should believe from the evidence that at the time he did fire the fatal shot-if you find that he did so from the evidence-the defendant was at that time in no danger of suffering death or great bodily harm, and that the situation and surrounding circumstances were not such as to cause it to appear to the defendant as a reasonable person that, at the time, he was in danger of his life or of suffering great bodily injury, then I instruct you that, unless it did appear to the defendant as a reasonable man that he [the defendant] at the time of firing the fatal shot was in danger of suffering great bodily harm, then and under such circumstances the defendant could not justify the shooting and killing of the deceased upon the ground that the same was done in self defense." The instruction gives the rule as favorably to the defendant as the law would justify. If the criticism of appellant's attorney is correct, then the danger need not have existed at the time the fatal shot was fired. It certainly is not the law that a defendant can justify the taking of human life upon the belief that danger is about to become imminent, or that it will in the future become imminent. There must have been reasonable ground to apprehend a design to commit a felony, or to do great bodily harm, and imminent danger of such design being accomplish

ed, and this at the time the fatal shot was fired.

'It was not error for the court to charge the jury that they had nothing to do with the place of birth or the nationality of the deceased, or the situation of the defendant or the deceased with reference to their families. The attorney for the defendant in his argument to the jury had many times referred to deceased as "this Armenian," and to the defendant as having a father and mother in the "good old state of Missouri." The deceased, no matter what his nationality, was entitled to the equal protection of the laws, and defendant was not entitled to any special privileges because his father and mother lived in the state of Missouri. It would import a new principle into our criminal law if the place of birth or nationality of the parties concerned in the commission of a crime could be considered as material to the guilt or innocence of a defendant.

The defendant insists that the court erred in refusing to give requested instructions explaining the law of self-defense, and the right of a defendant to act upon appearances. We have examined the requested instructions which were refused and the instructions given, and we are of opinion that the material portions of the instructions refused were given elsewhere in the charge of the court. The

instructions given by the court cover about 90 folios of the transcript and every phase of the case. While it may be said that they are unnecessarily voluminous, they show that the learned judge of the court below carefully guarded the rights of the defendant. To have repeated the substance of any of these instructions, even though in different words, could not have aided the jury, but would have tended to confuse them. The rights of the defendant were not only guarded, but the rulings on all doubtful questions were in his favor.

The claim that the verdict was obtained by means other than a fair expression of opinion of the jurors is entirely without merit. The verdict as first rendered fixed the term of imprisonment of the defendant. The judge properly told the jury that it was informal, and instructed them to eliminate the portion of it fixing the punishment. One of the jurors asked the judge to inform them the penalty that could be imposed under a verdict of manslaughter. The judge in reply stated that the punishment was a matter entirely for the court, but that it was not "a matter that was so arbitrary as to preclude a recommendation or anything of that sort, but the jury have no power to fix it." No objection was made to the remark of the judge, and no exception taken to it. The jury then retired, and afterwards brought in the verdict, accompanied with a recommendation of the defendant to the mercy of the court. At the request of the defendant the jury was polled, and the verdict was then recorded.

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

We concur: HARRISON, P. J.; HALL, J.

(4 Cal. App. 764)

DINNIGAN v. PETERSON. (Court of Appeal, Second District, California. June 22, 1906.)

1. CARRIERS-INJURY TO PASSENGER-STAGECOACH-NEGLIGENCE-PRESUMPTIONS.

Where a stagecoach was overturned by striking a boulder, in turning back into the road after turning out, negligence of the driver is presumable.

[Ed. Note.-For cases in point, see vol. 9. Cent. Dig. Carriers, § 1294.]

2. SAME-CARE REQUIRED.

Where the driver of a coach approaches a place of particular danger to passengers, he is bound to warn them of the nature of the danger.

[Ed. Note.-For cases in point, see vol. 9, Cent. Dig. Carriers, §§ 1193, 1196.]

3. SAME-CONTRIBUTORY NEGLIGENCE.

It was not contributory negligence for a passenger in a stagecoach to jump out when it began to tip over.

[Ed. Note.-For cases in point, see vol. 9, Cent. Dig. Carriers, § 1352.]

Appeal from Superior Court, Kern County; Paul W. Bennett, Judge.

Action by Richard R. Dinnigan against N.

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