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any other person other than S. F. Deardorff. and kept in good order the said ditch, and the That the said S. F. Deardorff died on or said Samuel and Mary Deardorff and their about August, 1901"; allege that on Decem successors in interest have ever since used ber 4, 1896, said Mary Deardorff executed a and still use said water ditch for said purtrust deed on said lands owned by her (said | poses without injury to the adjacent lands; section 4) and that her said deed to S. F. and that plaintiff Mrs. Jones and her predDeardorff was made subsequently, namely, on ecessors in interest have also used said ditch August 7, 1897; that she defaulted in the for the purpose of irrigating said land in secpayment of the money secured by said trust tion 4; that defendants and Oscar Deardorff deed; that the land was thereafter, to wit, are the owners of the land in section 8, and on August 17, 1898, sold pursuant to the trust that the water from said ditch is necessary deed and was thereafter conveyed to said for the production of crops on their said land, Mrs. A. B. Jones, one of plaintiffs herein, and that defendant John Deardorff owns who is now the sole owner thereof.

water running through said Settlers ditch. The court found the facts generally as al. The court also found that plaintiffs have leged by defendants; that the said land in wrongfully obstructed said lateral ditch; alsection 4 was owned in fee simple absolute so that the deed of the land in said section by plaintiff Mrs. Jones; that in August, 1897, 4, to said plaintiff Mrs. Jones, coming through Mary Deardorff, wife of Samuel, was the the Sacramento Bank by the trustees' sale owner of said land in section 8, “which land under said deed of trust, conveyed the land was worked, managed, rented, and looked to her, “expressly reserving in its conveyance after by the husband of said owner, the said of said land all water ditches and roads thereSamuel F. Deardorff. That while in the man- | tofore conveyed.”

tofore conveyed.” The court found against deagement of said land of the said Mary Dear fendants' alleged prescriptive right and dorff as aforesaid, and for the purpose of against the alleged bar of the state of limmaking the same appurtenant to the said” itations. In its conclusions of law the court land in section 8, “the said Samuel F. Dear- | found: That defendants are the owners of dorff purchased of one Mary E. Kirkendall the ditch in question and the right to maina right of way for a water ditch over and tain and keep the same in order and jointly across”. the said land in section 4, "and with plaintiff Mrs. Jones to run water took the conveyance thereof in his own name through the same and that defendants are for the use and benefit of the said" land in entitled to a decree quieting the title in said section 8, “then owned by the said Mary ditch and to an injunction perpetually reDeardorff, and for the use and benefit of the straining plaintiffs from interfering theresaid Mary Deardorff and her grantees.” The

with. Judgment was accordingly entered court found that Mary Kirkendall was, on

from which and from the order denying August 7, 1897, the owner of the land in sec their motion for a new trial plaintiffs appeal. tion 4, subject to the deed of trust as al It is claimed that the court erred in adleged by plaintiffs and that "on said date mitting the deed to Samuel Deardorff. The executed to Samuel Deardorff a conveyance record fails to show the ground of the obof said right of way so purchased by him as jection made when the deed was offered in aforesaid, which conveyance was, and is in evidence, and hence the specification raises words and figures following, to wit: “I, Mary no question for it cannot be said to have E. Kirkendall, of the county of Kings, state

been inadmissible for every purpose. In of California, do grant unto Samuel F. Dear making objection to evidence the ground dorff, of the same county and state, a right must be stated in order that the court may of way for a water ditch over and across (de-determine whether the ruling of the lower scribing land in section 4) subject to the fol court was correct or otherwise. It is claimlowing reservation and limitations; the said ed also that the evidence is insufficient to water ditch (describing its dimensions) is support the following findings: (a) that denot to be used by said S. F. Deardorff, except fendants have a right to maintain a ditch for the conveying of water to (land in sec over the land in section 4; (b) that when tion 8) for use thereon, without the consent Samuel Deardorff took a deed for the water of myself or grantee, nor for conveying water ditch across section 4 he did so that the to any other person without my consent. The same should become a permanent use or said Samuel F. Deardorff is to keep said benefit to section 8, or that the ditch ever water ditch in good order and to use the same became appurtenant to said section. The so as to do no injury or damage to the ad- legal proposition upon which appellants rely jacent land. I reserve the right to run suf is: That the grant from Kirkendall to Samficient water in said ditch at any time to ir uel Deardorff was simply a grant in gross, rigate my own lands situate in and being a and was limited as a right in the grantee, part of said quarter section.” . The court and was not intended by either party to found that immediately after said conveyance become appurtenant to any land; that it was executed the said Samuel Deardorff and was not in the nature of an easement, and his wife, Mary, constructed a ditch along the hence not an estate of inheritance, but a right of way so conveyed and that they and simple right of way that died with the grantheir grantees have ever since maintained tee,

By the terms of the deed to Deardorff, , ed to be incidental or appurtenant to land the ditch was not to be used by the grantee when it is by right used with the land for its “except for the conveying of water to the benefit.” Civ. Code, § 662. The grant in north half of section 8 for use thereon,” this case created an easement, and the eviunless by the consent of the grantor, Mary dence shows that it became appurtenant to Kirkendall. This was a negative form of defendants' land as the court found. Whethiexpressing the right to use the ditch to con er an easement in a given case is appurtenvey water to said section. The consent of ant or in gross is determined mainly by the the grantor was necessary if water was to nature of the right and of the intention of be conveyed elsewhere. The deed also pro the parties creating it; but the courts favor vided that the ditch was not to be used, the construction of grants of these rights without grantor's consent for conveying as appurtenant rather than in gross, and if water to any other person than the grantee. the right in question is in its nature an apIt is apparently upon this clause that ap propriate and useful adjunct of the land pellants rely to show that the grant was conveyed, having in view the intention of the personal only to Samuel Deardorff-or a grantee as to its use, and there being nothtechnical grant in gross. Whether the deed ing to show that the parties intended it standing alone should be given the construc to be a mere personal right, it would be tion contended for it is not necessary to

held to be an easement appurtenant to the decide. Defendants were permitted to show | land, and not an easement in gross. 10 without objection, and it appears by the

and it appears by the Am, & Eng. Ency. (2d Ed.) p. 405; Hopper record, that Mary Deardorff's husband was V. Barnes, 113 Cal. 636, 45 Pac. 874. The icting for her in the matter as her agent, deed to plaintiff, Mrs. Jones, is not in the and that he took the deed "for the use and record, but it is stated in the transcript that benefit of said north half of said section S"; her grantor, the Sacramento Bank, "reserved that his wife, the said Mary, assisted in the

in its conveyance * * all water ditchconstruction of the ditch and that they es and roads theretofore conveyed,” from constructed the ditch together conformably which it may be inferred that the purchaser to the terms of the deed at a considerable ex

at the sale under the trust deed regarded pense to themselves : that the ditch was

his purchase as subject to the easement creconstructed immediately after the deed was

ated for the benefit of defendants' land. The received and that it has been used ever permission given to the Deardorffs, contemsince by Deardorff and his successors in poraneously with the grant, to enter upon interest, "and they have since maintained the land and construct the ditch, and its and kept in good order the said ditch agree

use by them and their successors in interest ably to said deed” and that “they (Dear- for so long a time, without objection, to dorff and his wife) have since used said water

convey water to section 8, where it was ditch for conveying water to said” section 8 necessary to the proper enjoyment of the without “injury or damage to the adjacent land, both by them and their successors in land.” The court found, and the finding is

interest, would give rise to a strong infernot challenged, that plaintiff Mrs. Jones and

ence that the original intention of the parties her predecessors used said ditch to convey

was that the ditch should become a servi. water to their land in section 4. The testi

tude upon section 4 of which section 8 was

the dominant tenement. "The estate of a mony is not set forth in the transcript; appellants in preparing it have given what

servitude is determined by the terms of the

grant, or the nature of the enjoyment by purports to be but the legal effect of the testimony. Nor does the bill of exceptions pur

which it was acquired.” Civ. Code, $ 806. port to contain all the evidence or the legal

The judgment and order are affirmed. effect of it at all. Upon the record before us, however, we think the findings are sup

We concur: MCLAUGHLIN, J.; BUCported and that the court drew just con

KLES, J. clusions from the findings. Mary Deardorff died in 1901, and her husband died in 1902,

(4 Cal. App. 31) and defendants succeeded to their interest

PEOPLE V. TAYLOR. in section 8 by decree of distribution, and “are now the owners thereof and irrigation

(Court of Appeal, First District, California.

June 27, 1906.) thereof is necessary to its proper cultivation" and they "have been wont to run water


ANT-SELF-SERVING DECLARATIONS. through said ditch during all the irrigating

Defendant shot deceased while standing on seasons since the fall of 1902." The cause the bank of an irrigation ditch, and in a prosewas tried in November, 1904. “The right of cution for the homicide a witness testified that way" and "the right of receiving water from

he, with others, had searched the ditch at the

point where the shooting occurred, and found or discharging the same upon land,” are à bullet in the bottom of the ditch which was among the burdens or servitudes which of the same caliber as the one found in de"may be attached to other land as incidents ceased's body; that the search for the bullet was

because of a statement made by defendant to or appurtenances and are then called ease

witness about having fired a shot into the water. ments." Civ. Code, $ 811. “A thing is deem- II eld, 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 noni 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.

[Cd. Note.--For cases in point, see vol. 14, Cent. Dig. Criminal Law, $8 1731–1735, 1758.] 3. BIOMICIDE-SELF-DEFENSE-IMMINENCE OF DANGER.

In order to justify a killing as committed in self-defense, the danger must have existed, or bave 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. 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, sce vol. 14, Cent. Dig. Criminal Law, 88 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.

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 ster, 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

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

the pistol in my hip pocket.

my hip pocket. I thought I to the defendant by allowing in evidence the would go across the ditch and get my wheel. portion of the statement made to the witness I jumped from the running board of the drop as to having fired into the ditch. It was pot onto the bank. As I reached the ground he permissible to allow the witness, without any grabbed me. I whirled around facing him. restrictions, to state all that defendant said I struck him a couple of times with my left to him. It was not part of the res gesta, hand. He caught me at that time so I and was purely hearsay and a self-serving couldn't use my right hand. I hit him on declaration. There was no claim made by the the breast or ribs. * * While we were prosecution that the account or statement Seuilling there, I took the gun out of my made by the defendant as to firing the bullet pocket with my left hand. I put it over in my into the water was fabricated, and hence right hand; passed it in front of him to my the rule cannot be invoked which, in some right hand or around his neck. I told him, exceptional cases, allows statements made by if he did not let loose of me, I would shoot. a defendant at or about the time of the act * * * At the time the shot was fired Paul to be received in evidence for the purpose of was coming through the fence. I didn't aim (orroborating the statement or account he to fire the shot just at that instant, but I has given upon the stand. Where a defendwould have had to fire in a second or two. ant has given an account of a transaction, When the shot was fired Bedrosian let loose and the prosecution has attempted to impeach of me. I ran out in the road.” Defendant him by evidence as to a different account of admitted that in the preliminary examination the same transaction made to other parties, he testified as follows: "I didn't think there the law, in its spirit of fairness to the dewas any necessity for defending myself with fendant, ullow's him to call other witnesses the gun.

* * The reason why I drew for the purpose of showing that other acmy gun the second time was that I thought I counts or statements made by him immediatewould run a bluff on hiin. I was not draw ly after the occurrence and while it was fresh ing the gun for the reason that I was afraid in his mind are the same in substance as he was going to hurt me. I am not afraid of that given by him as a witness upon the ally one man. I was not afraid of him then. stand. The question in such case is as to the When I fired the first shot, I then raised the credibility of the defendant or the witness. gun up towards him with my left hand. He See People v. Doyell, 18 Cal. 85. In this lodged down and threw the shovel around

(ase there was no such question to which that way, and says something or other-I the evidence sought to be elicited would couldn't say what. He seemed so excited; have been admissible. but it sort of tickled me, and I had a kind of We have carefully examined the instruction grin. I couldn't help it." The witness complained of in which the court charged the Saunders testified that he heard a shot, and jury that if they should find certain material looked up and saw deceased have hold of matters as facts beyond a reasonable doubt, defendant's arm; that he heard deceased and that if the jury believed from such facts say, “Don't shoot! don't shoot!" and that that defendant wrongfully, unlawfully, and he heard a second shot, and looked and saw unnecessarily brought on the struggle, or bedeceased just about to the ground, falling. came and was the aggressor, and did not atThe above is stated for the purpose of more tempt to abandon or withdraw from the alterclearly elucidating the points discussed.


cation, and during the altercation defendant is not claimed that the evidence is insufficient killed deceased, that defendant could not to sustain the verdict.

avail himself of the plea of self-defense in It is urged that the court erred in sustain case he did so create a real or apparent neing objections to questions asked by defend cessity for the killing, by his own unlawful ant's counsel in direct examination of the acts. The objection urged to the instruction witness Tremper as to what statement de is that it "left the jury to infer that although fendant made to him at the time defendant they were the sole judges of the effect and told him of having fired the first shot into value and weight of testimony, they were listhe water ditch. The court correctly sus tening to a judge who really did have an opintained the objections. The witness had tes ion in regard to the guilt or innocence of the tified that he, with others, had searched the defendant." It is certainly reasonable to inditch at or about the point where the shoot fer that the judge really did have an opinion ing took place, and found a bullet in the bot as to the guilt or innocence of the defendant, tom of the ditch, which was a 38-caliber bullet but we can find no expression or intimation of similar to the one found in the body of de such opinion in the instruction. Not only this, ceased; that the searching for the bullet but the judge said to the jury: "I again was because of the statement made by the charge you that you, and not I, are the judges defendant to the witness about having fired of the facts in the case; and I do not intend a shot into the water. Counsel say that the by giving you these instructions to imply the object in asking the question was to cor existence or nonexistence of any fact in the roborate the defendant by showing that he

case." made a statement of a material fact, which The clain is made that it was error for the proved to be true by an examination of the court to charge the jury that "the danger to ditch. The court certainly was very liberal the defendant, if any, must have existed, or

have reasonably appeared to exist, at the very | instructions given by the court cover about 90 time the defendant fired the fatal shot" in or folios of the transcript and every phase of der to justify the killing. The portion of the the case. While it may be said that they are instruction quoted must be read in connection unnecessarily voluminous, they show that the with what is subsequently stated in the same learned judge of the court below carefully instruction, to wit, “If you should believe guarded the rights of the defendant. To have from the evidence that at the time he did fire repeated the substance of any of these instructhe fatal shot—if you find that he did so tions, even though in different words, could from the evidence the defendant was at that not have aided the jury, but would have time in no danger of suffering death or great tended to confuse them. The rights of the debodily harm, and that the situation and sur fendant were not only guarded, but the rulrounding circumstances were not such as to ings on all doubtful questions were in his cause it to appear to the defendant as a rea favor. sonable person that, at the time, he was in

The claim that the verdict was obtained by danger of his life or of suffering great bodily

means other than a fair expression of opininjury, then I instruct you that, unless it did ion of the jurors is entirely without merit. appear to the defendant as a reasonable man The verdict as first rendered fixed the term that he [the defendant) at the time of firing of imprisonment of the defendant. The judge the fatal shot was in danger of suffering great properly told the jury that it was informal, bodily harm, then and under such circumstan

and instructed them to eliminate the portion ces the defendant could not justify the shoot

of it fixing the punishment. One of the juing and killing of the deceased upon the

rors asked the judge to inform them the penground that the same was done in self de alty that could be imposed under a verdict of fense.” The instruction gives the rule as fa manslaughter. The judge in reply stated that vorably to the defendant as the law would the punishment was a matter entirely for the justify. If the criticism of appellant's attor

court, but that it was not "a matter that was ney is correct, then the danger need not have so arbitrary as to preclude a recommendation existed at the time the fatal shot was fired.

or anything of that sort, but the jury have no It certainly is not the law that a defendant power to fix it." No objection was made to can justify the taking of human life upon the

the remark of the judge, and no exception takbelief that danger is about to become immi

en to it. The jury then retired, and afternent, or that it will in the future become im

wards brought in the verdict, accompanied minent. There must have been reasonable

with a recommendation of the defendant to ground to apprehend a design to commit a fel the mercy of the court. At the request of the ony, or to do great bodily harm, and immi defendant the jury was polled, and the vernent danger of such design being accomplish

dict was then recorded. ed, and this at the time the fatal shot was

We find no error in the record, and the fired.

judgment and order are affirmed. It was not error for the court to charge the jury that they had nothing to do with the

We concur: HARRISON, P. J.; HALL, J. place of birth or the nationality of the deceased, or the situation of the defendant or the deceased with reference to their families.

(4 Cal. App. 764) The attorney for the defendant in his argu

DINNIGAN v. PETERSON. ment to the jury had many times referred to (Court of Appeal, Second District, California. deceased as "this Armenian," and to the de

June 22, 1906.) fendant as having a father and mother in the

1. CARRIERS-INJURY TO PASSENGER-STAGEgood old state of Missouri.” The deceased,


Where a stagecoach was overturned by no matter what his nationality, was entitled striking a boulder, in turning back into the road to the equal protection of the laws, and de after turning out, negligence of the driver is fendant was not entitled to any special priv


[Ed. Note. For cases in point, see vol. 9, ileges because his father and mother lived in

Cent. Dig. Carriers, $ 1294.] the state of Missouri. It would import a new

2. SAME-CARE REQUIRED. principle into our criminal law if the place of

Where the driver of a coach approaches a birth or nationality of the parties concerned place of particular danger to passengers, he is in the commission of a crime could be consid bound to warn them of the nature of the danered as material to the guilt or innocence of a


[Ed. Note.-For cases in point, see vol. 9, defendant.

Cent. Dig. Carriers, $S 1193, 1196.] The defendant insists that the court erred

3. SAME-CONTRIBUTORY NEGLIGENCE. in refusing to give requested instructions ex

It was not contributory negligence for a plaining the law of self-defense, and the right passenger in a stagecoach to jump out when it of a defendant to act upon appearances. We

began to tip over. have examined the requested instructions

[Ed. Note.-For cases in point, see vol. 9,

Cent. Dig. Carriers, $ 1352.] which were refused and the instructions given, and we are of opinion that the material Appeal from Superior Court, Kern Counportions of the instructions refused were giv ty; Paul W. Bennett, Judge. en elsewhere in the charge of the court. The Action by Richard R. Dinnigan against N.

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