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falling within any of these provisions, when | had full title, and which had not been previthe line was definitely fixed, were excluded ously reserved, sold, granted, or otherwise from the granting clause of the act Ard's

Ard's | appropriated, and which were free from prehomestead rights attached prior to the defi- emption or other claims or rights' at the nite location of any line or railroad. He is time the line of the road was definitely fixtherefore within the exact provision of one ed; giving to the railroad company the right of the reservations in the grant. The pre- to select lands within certain limits in place tended withdrawal, if given the effect con- of such as were found at the date of definite tended for by plaintiffs in error, would be location to have been disposed of or to be giving such commissioner power to nullify 'occupied by homestead settlers.'” one of the important reservations in the held that the order of withdrawal did not grant. This precise question was before the withdraw the land from homestead settleSupreme Court in Nelson v. Northern Pacific ment, and many cases are cited sustaining Railway, 188 U. S. 108, 23 Sup. Ct. 302, 47 | this conclusion.

this conclusion. In the opinion the expresL. Ed. 406. The grant contained the follow- , sions used by Mr. Justice Field in Buttz v. ing reservations: “That there be, and thereby | Northern Pacific Railroad, 119 U. S. 55, 71 is, granted to the 'Northern Pacific Railroad | 72, 7 Sup. Ct. 100, 108, 30 L. Ed. 330, relied Company, its successors and assigns, for the upon by plaintiffs in error to the effect that: purpose of aiding in the construction of said “When the general route of that road was railroad and telegraph line to the Pacific made known by a map duly filed and acCoast, and to secure the safe and speedy | cepted, 'the law withdraws from sale or pretransportation of the mails, troops, munitions emption the odd sections to the extent of forty of war, and public stores over the route of miles on each side. The object of the law said line of railway, every alternate section in this particular is plain; it is to preserve of public land, not mineral, designated by the land for the company to which, in aid odd numbers, to the amount of twenty alter- of the construction of the road, it is granted'" nate sections per mile on each side of said -is quoted and commented on as follows: railroad line, as said company may adopt, “But it is evident, in view of both prior and through the territories of the United States, subsequent decisions, that this language is and ten alternate sections of land per mile not to be taken literally, or apart from the on each side of said railroad whenever it other portions of the opinions of the eminent passes through any state, and whenever on jurist who delivered the judgment of the the line thereof the United States have full court. If, upon the filing and acceptance of title, not reserved, sold, granted, or other- the map of general route, the law withdrew wise appropriated, and free from pre-emption the odd-numbered sections, then the previous or other claims or rights at the time the holding in many cases, that until definite localine of said road is definitely fixed, and a tion the grant was a float, with no interest plat thereof filed in the office of the commis- in specific sections being acquired by the railsioner of the general land-office; and when- road company, would be meaningless, and ever, prior to said time, any of said sections there would be some difficulty in Congress or parts of sections shall have been granted, appropriating such lands prior to definite locasold, reserved, occupied by homestead settlers, tion. Indeed, it is manifest that the court did or pre-empted, or otherwise disposed of, other not mean to announce any new doctrine in lands shall be selected by said company in

the Buttz Case, for Mr. Justice Field, when lieu thereof, under the direction of the Secre- delivering judgment in that case, said that the tary of the Interior, in alternate sections, and charter of the Northern Pacific Railroad Comdesignated by odd numbers, not more than pany contemplated 'the filing by the company, ten miles beyond the limits of said alternate in the office of the commissioner of the gensections.” An order of withdrawal dated No- eral land office, of a map showing the definite vember 1, 1873, was issued by the commis- location of the line of its road, and limits sioner of the land office, which included the the grant to such alternate odd sections as land in controversy in that action. Subse. have not at that time been reserved, sold, quently, and in 1881, and before the railroad granted, or otherwise appropriated, and free company had definitely located its line, Nel- from pre-emption, grant, or other claims or son made a homestead settlement upon a por- rights." Again, in the later case of Sjoli v. tion of the land within the place limits as Dreschel, 199 U. S. 564, 26 Sup. Ct. 151, 50 shown by the map of definite location. The L. Ed. 311, it was said that: “No right to. contention was that the withdrawal order land within indemnity limits will attach in withdrew the land from pre-emption and

favor of the railroad company until after homestead settlement. In the opinion, at selection made by it with the approval of the page 116 of 188 U. S., at page 304 of 23 Secretary of the Interior. That up to the Sup. Ct. (47 L. Ed. 406), the court said: “But time such approval is given, lands within we have also seen, looking at the third sec- indemnity limits, although embraced by the tion, which was the granting section of the company's list of selections, are subject to be act, that Congress did not grant every odd- disposed of by the United States, or to be setnumbered alternate section within the general tled upon and occupied under pre-emption and limits specified, but only the odd-numbered homestead laws of the United States, and that alternate sections to which the United States the Secretary of the Interior has no authority

87 P.-24

to withdraw from sale or settlement lands and makes the decision turn upon, the linthat are within indemnity limits which have itation on the granting clause, which makes not been previously selected, with his approv- it also requisite that 'the United States have al, to supply deficiencies within the place full title, not reserved, sold, granted, or limits of the company's road.” A critical ex- otherwise appropriated, and free from preamination of the cases which are said to emption or other claims or rights at the maintain a contrary rule will show that they time the line of said road is definitely fixed.' were cases arising under grants which direct- They all recognize the well-established rule ly authorized a withdrawal, or between orig- that the grantee under a railroad land grant inal and subsequent grantees claiming the acquires, by designating the general route of same lands; and in the latter cases the ques- its road, only an inchoate right to the oddtion was, what was to be understood by the numbered sections granted by Congress, and term "public lands" as used in the subsequent that until the definite location of the road rant; that is, whether it was exclusive of these sections remain within the disposing lands covered by a former grant not yet earn

power of Congress, and this, even though ed? It happened in many of the cases that they be withdrawn for the protection of the the lands covered by the prior grant had been

grant, as in the present case." withdrawn by the Secretary of the Interior,

The well-established rule, therefore, is that but this was not the controlling feature of

where lands are granted to a railroad with the decision. The holdings generally have

certain reservations, for purposes designated been that the term "public lands" as used in

in the grant, in the absence of express authe subsequent grant excluded lands included

thority, the Secretary of the Interior or the within prior grants.

land commissioner is powerless to make any Wolsey v. Chapman, 101 U. S. 755, 25 L.

order with reference thereto which will have Ed. 915, cited by plaintiffs in error, is a case

the effect to defeat the reservations. Conof the first class. This controversy arose

gress has exclusive authority to dispose of over a general land grant made to the state

the public domain, and, in the absence of its of lowa of 500,000 acres of land for internal

adoption of any specific rule for carrying improvements, dated dated September 4, 1841.

out its purpose, the Land Department may These lands were to be selected from any

adopt such rules and regulations as to it public lands "except such as is or may be

may seem proper for that purpose; but in reserved from sale by

proclama

the absence of express authority that detion of the President of the United States."

partment is powerless to adopt a procedure April 6, 1850, the Secretary of the Interior

which will defeat the expressed intention of directed that certain lands in the state of

Congress in the disposition of the public Iowa be reserved from sale, in order to settle

domain. Congress in the grant in question the rights of rival claimants thereto. On

expressly reserved from its operation all July 20, 1850, the agent of the state of Iowa

lands which should be sold or reserved by having in charge the school lands and school

the United States, or to which the right of fund gave notice at the general land office

pre-emption or homestead settlement had atthat he had selected a portion of lands thus

tached when the line of said railroad or withdrawn as a part of the 500,000-acre

branches are definitely fixed. The lands fallgrant under the act of 1841. It was held

ing within these reservations were not grantthat the order of withdrawal was authorized

ed to the railroad companies, and the land by the grant, and all lands which had at

commissioner had no authority by any act the time been reserved, and all that might

to deprive those for whose benefit the reservathereafter be reserved, by the proclamation

tions were made of the privilege of exercisof the President were excepted from the

ing that right. grant. It was also held that the order of

The judgment is affirmed. All the Juswithdrawal issued by the Secretary of the

tices concurring. Interior must be held to have been by proclamation of the President, and was the withdrawal provided for in the grant. The case of Northern Lumber Co. v.

(74 Kan. 467) O'Brien, 139 Fed. 614, 71 C. C. A. 598, also

STATE v. GREGORY. relied upon by plaintiffs in error, does not

(Supreme Court of Kansas. Oct. 6, 1906. involve the question we are called upon to

Rehearing Denied Nov. 10, 1906.) decide. It does, however, recognize the rule as here stated. In distinguishing the ques

1. INTOXICATING LIQUORS-SALES BY DRUG

GIST. tion presented to it from the one in Nelson The provisions of section 3737, Gen. St. v. Northern Pacific, supra, and other similar 1905, requiring druggists having a permit to sell cases, the court said: "None of these cases

intoxicating liquor to do so only upon an affi

davit made by the applicant, and subscribed by has particular reference to, or makes the

him in ink, are mandatory, and a sale of in. decision turn upon, the clause, there be, and toxicating liquor, made for medical purposes, hereby is, granted * *

every alternate without complying with these provisions, is a

criminal offense. section of public land, which makes the

[Ed. Note.-For cases in point, see vol. 29, grant one in präsenti of land then public,

Cent. Dig. Intoxicating Liquors, $$ 135, 167, but instead, each had particular reference to, 168.]

*

2. CRIMINAL LAW – APPEAL – HARMLESS ER- | and provided, and against the peace and digROR.

nity of the state of Kansas.” The charging An erroneous instruction may be rendered harmless by other instructions given, and when

part of each of the other counts was in such condition exists, the judgment of the trial the same language, except where the apcourt will not be reversed on account of such er- plicant was a different person. The defendror.

ant moved to quash each count of the infor[Ed. Note.For cases in point, see vol. 15, Cent. Dig. Criminal Law, SS 315+3158.]

mation, for the reason that it did not state a

public ofl'ense, was indefinite, uncertain, and 3. INFORMATION-SUFFICIENCY. When an information charging a defendant

failed to inform the defendant of the nature of with a misdemeanor alleges that the act which the charge against him. This motion was orconstitutes the offense was done knowingly and erruled. A motion to make each count more willfully, no other or further criminal intent need be alleged or proven.

definite and certain was also filed and over[Ed. Note.-For cases in point, see vol. 27,

ruled. The objections made to the informaCent. Dig. Indictment and Information, $8 256, tion were more specifically presented on the 257.]

trial, as the evidence was being introduced, (Syllabus by the Court.)

when it was urged that the averment of the

information concerning the defendant's failAppeal from District Court, Morris Coun

ure to take the affidavit of the applicant ty; 0. L. Moore, Judge.

stated a conclusion and not a fact, and did C. A. Gregory was convicted of selling in

not sufficiently apprise the defendant of the toxicating liquors, and appeals. Affirmed.

facts which he would be compelled to anThe defendant is a druggist and pharma

swer. It was also contended that the statute cist. He held a permit to sell intoxicating requiring druggists to sell only upon an affiliquor under the prohibitory law in Morris davit of the applicant signed in ink is dicounty. On the 18th day of April, 1906, he

rectory merely, and noncompliance therewith was convicted in the district court of selling

not a crime. liquor for medical purposes without requiring

It appears from the evidence that when the applicant to make the aflidavit provided the purchaser made application for the ligby law, and without the name of the appli

uor, the druggist filled up the blanks in a cant being subscribed thereto in ink. The

printed statement, which was in proper form, information was drawn under section 3737,

the applicant then signed such statement Gen. St. 1905, the material parts of which,

with a lead pencil, and received the liquor so far as this case is concerned, read: "Any

without the administration of an oath, made druggist having a permit to sell intoxicating

with the uplifted hand or otherwise. liquors under the provisions of this act may

The defendant requested the court to give sell the same only by himself in person or by

the following instruction to the jury, which a clerk who is a registered pharmacist or as

was refused: “You are further instructed sistant pharmacist under the laws of this

that to constitute a criminal offense a crimstate, for medical purposes only, upon the

inal intent is necessary in this class of cases." printed or written affidavit of the applicant setting forth the particular medical purpose

The court, however, gave instructions to the

jury which read: "To the charge in the serfor which such liquor is required, the kind

eral counts of the information the defendand quantity desired; that it is necessary

ant has entered his plea of not guilty. This and actually needed for the particular pur

casts the burden of proof upon the state to pose by the patient to be named; and that it is not intended for a beverage, nor to sell

establish by a preponderance of the evi

dence each of the material allegations of each nor give away; and that the applicant is over

count of the information before you can find twenty-one years of age, which affidavit shall be in the following form, and subscribed by

the defendant guilty under such count.” “In the applicant in ink.” The information con order to convict the defendant under the first tained five counts. One was withdrawn.

count of the information, the jury must be

satisfied from the evidence beyond all reaThe first count, after the formal and intro

sonable doubt: First. That on or about the ductory parts, reads: "C. A. Gregory, being then and there a pharmacist and druggist,

13th day of May, A. D. 1905, and within the and having a permit to sell intoxicating liq

county of Morris and state of Kansas, the uors for medical, mechanical, and scientific

defendant, C. A. Gregory. was then and purposes in Morris county, state of Kansas, there a pharmacist and druggist, and as such did, on or about the 15th day of May, A. D.

pharmacist and druggist had a permit from 1903, at the county of Morris and state of

the probate court of Morris county to sell Kansas, unlawfully, knowingly, and willfully intoxicating liquors for medical, mechanical, sell and barter intoxicating liquors to one R.

and scientific purposes. Second. That on or A. Henderson for medical purposes without about the 15th day of May, and within this requiring the purchaser of said liquor to make county, and within two years prior to the the affidavit required by law as a condition filing of the information in this case, and precedent to such sale, and without requiring while so being a druggist and having a per: said purchaser of said intoxicating liquors mit, as aforesaid, the said defendant, C. A. to sign the affidavit required by law in ink, Gregory, unlawfully, knowingly, and willcontrary to the statutes in such case made fully sold and bartered intoxicating liquors to one R. A. Henderson for medical purposes ing to the affidavit required of the applicant without requiring the purchaser of said liq- before a sale of intoxicating liquor can be uor to make the affidavit required by law made to him are material and vital parts as a condition precedent to such sale, and of a law to prevent the sale and use of inwithout requiring the said purchaser of said toxicating liquor as a beverage, and that intoxicating liquors to sign the affidavit re- sales by a pharmacist without having obquired by law in ink, as provided by the served them subjects the said pharmacist to statute above quoted to you, These are punishment by fine and imprisonment.” the essential ingredients of the offense char- The evident object of these requirements ged in the first count of the information, and of the statute furnish an unmistakable guide if the state has proven to your satisfaction for its interpretation. Manifestly it was in. beyond a reasonable doubt each of the in- tended that an oath, with all its solemnities gredients above named, then it would be and formalities, should be administered to your duty to find the defendant guilty under

every applicant as a check upon sales of the first count of the information." The

liquor to persons desiring to use it as a bev. same instructions were repeated as to each erage. The law provides that these appli. count.

cations shall be filed in the office of the proJohn Maloy, Roark & Roark, and Loomis,

bate judge, where they are open to public Blair & Scandrett, for appellant. C. C. Cole | inspection and examination. They might beman, Atty. Gen., W. J. Pirtle, and M. B.

come useful as evidence in prosecutions for Nicholson, for the State.

violations of the law. It is important, there fore, that the name of the purchaser should

not be open to erasure or change on account GRAVES, J. (after stating the facts).

of use in examination, lapse of time, or otherWe do not think the information fatally de

wise. The provision that the name shall be fective. The averment therein concerning

signed in ink subserves this purpose. The the affidavit is equivalent to a statement that

instruction given wherein the expression no affidavit whatever was made by the ap

"preponderance of the evidence" occurs was, plicant. This is sufficient. The whole em

of course, erroneous, but the court took up braces all the parts. The contention that the

each count of the information submitted to statute requiring the applicant to make an

the jury separately, and stated fully and affidavit and sign his name thereto in ink is

clearly all the elements of the offenses charmerely directory has already been overruled

ged therein, and stated that each and all by this court in the case of State v. Davis, 41 Kan. 60, 24 Pac. 73. In that case Commis

of such elements must be established beyond

all reasonable doubt before the defendant sioner Strang said: “We also think that the

could be convicted. This rendered the ex. very object of the provisions of the statute in forbidding the pharmacist who is permit

pression complained of harmless. ted to sell for medical purposes from so sell.

The instruction requested by the defendant ing until the applicant for the liquor has sub

as to the necessity of a criminal intent was scribed with ink and sworn to an affidavit

sufficiently covered by the instruction given

by the court that the act of the defendant properly filled out, under the statute, is to

must have been done knowingly and willfulprevent the sale and use of such liquor as a

ly before he could be convicted. We do not beverage. The pharmacist is bound to know

decide that it would have been error if these all the provisions of the law. If the appli

words had been omitted from the charge, but cant honestly wants intoxicating liquors for

since they were used, the defendant has no medical use, he will not hesitate to make

reason to complain. the necessary affidavit required by the law. But he may well hesitate about making such

These are the principal questions presented affidavit when he wants the liquor for use

by the defendant. Some others are suggestas a beverage, because the statute declares

ed, but they are unimportant, and we think that if he makes a false affidavit he shall

it unnecessary to discuss them. be guilty of perjury. It is the fear of pros

We are unable to find any error in the reco ecution for perjury that causes the shuffling

ord. The judgment is afirmed. All the Jusin connection with the making of the affidav

tices concurring. it, and which results in incomplete affidavits, such as were made in this case. The whole force and effect of the law may rest upon

(149 Cal. 531) this affidavit, for if it may be evaded, as in NEWPORT et al. V. TEMESCAL WATER

. this case, by simply signing it with a pencil

CO. (L. A. 1,788.) and not swearing to it, then any person, by

(Supreme Court of California. Aug. 10, 1906 simply saying in writing that he wants a

On Rehearing, Sept. 8, 1906.) certain quantity of liquor, and that he wants

1. WATERS AND WATER COURSES-SUBTEBit for medical purposes, can get it; and it is

RANEAN CONNECTION--EVIDENCE. well suggested in the state's brief that if that Evidence in an action to enjoin the pump could be done, it would become very fashion

ing and carrying off of waters of a valley held

to sustain a finding that there was no subterable to drink for medical purposes. We ranean connection between the waters thereot think all the provisions of the statute relat- and those of another valley,

2. SAME-DIVERSION-INJURY TO LAND-Evi- , Perris Valley,

Perris Valley, one of whom, the plaintiff DENCE.

Newport, is also a landowner in the Menefee Evidence in an action to enjoin the pumping of water held to sustain a finding that the

Valley, brought this action for an absolute land from under which it was drawn was, in

injunction to restrain the defendant from any case, arid and unprofitable.

further pumping and carrying off the waters 3. SAME-INJUNCTION-DAMAGES.

of Perris Valley. The essential allegations Where it is to the interest of the public of their complaint, upon which were founded that water be pumped and diverted to supply the needs of a town, and the monetary injury

their demand for an injunction, are that to the land from under which it is taken can be the plane of saturation, when not illegally indetermined, an absolute injunction will not be terfered with, stands from within 8 to 20 granted, but merely one conditioned on failure

feet of the surface of the ground; that upon to make good the damage. [Ed. Note.-For cases in point, see vol. 48,

their lands were growing trees, vines, grasses, Cent. Dig. Waters and Water Courses, 117.]

and shrubbery, sustained by the waters so In Bank. Appeal from Superior Court,

standing at this level; that by capillarity, Riverside County; J. S. Noyes, Judge.

percolation, and like natural forces, these

waters were drawn toward the surface, moisAction by William Newport and others

tening and nourishing the roots of herbage against the Temescal Water Company. Judg

and vegetation; that the effect of the pump-. ment for defendant. Plaintiffs appeal.

ing of defendant was to lower the plane of Affirmed.

saturation so as to render it impossible H. C. Rolfe and C. C. Haskell, for appel- | for the water to reach the roots and lants. Joseph H. Call, Purington & Adair, thus to destroy these vegetable growths. and E. W. Freeman, for respondents.

It was further charged that each of the

plaintiff's used, and had used, large quanHENSHAW, J. Perris Valley is a basin

tities of the water for surface irrigation, of 40 or 50 square miles in extent. The sur

for the growing of crops and for the nourishface soil is of inferior character, arid and

ing of vines and trees; that this lowering alkaline. At a depth varying from 8 to 40

of the water plane by defendant made pumpfeet below the surface the land consists of

ing more difficult and expensive and would in unstratified silt, detritus, and gravels. The voids in this soil carry water, and the water

time deprive plaintiffs of all water. Finally,

it was alleged that Menefee Valley, with Perbearing soils are from 100 to 400 feet in

ris Valley, formed a part of one and the same depth. Contiguous to Perris Valley is Mene

catchment basin, and that the effect of defendfee Valley, a somewhat similar, though small

ant's pumping in Perris Valley was to lower er, tract of land. The surface soil of the

the plane of saturation under plaintiff NewMenefee Valley is of better quality than that

port's land in Menefee Valley, and thus to of Perris Valley, and, like the latter, rests

work the same disastrous result. The deon water-bearing gravels. The Temescal Wa

fendant answered by denying the alleged acts ter Company, defendant herein, is a corpora

and the resultant damage. It denied any tion engaged in the collection and distribution

subterranean connection between the waterof waters for the use of its stockholders and

bearing gravels of Perris Valley and Meneothers. It supplies the inhabitants of the

fee Valley, and alleged that these valleys town of Corona with water. The town of

were disconnected and were in different waCorona, with a population of 2,700, has grown

ter sheds. As to the lands in Perris Valley, up dependent upon the water supply of de

it denied that in a state of nature the satufendant, and property to the value of $4,000,- rated gravels in any way contributed to the 000 is subject to complete destruction should

nourishment of the vegetation, and alleged that supply fail. Of that supply all except that the lands were in great part alkaline and an insignificant portion is taken by defend- unfit for husbandry, and could not produce ant from Perris Valley. In collecting and

fair corps either from the subsurface waters, husbanding this water and delivering it to

or from surface irrigation, or from both. Afits consumers the defendant has expended firmatively it alleged that, underlying the Hearly $1,000,000, and the value of its water surface of Perris Valley and but a few feet rights and other properties is at least $2,000,- below the surface, was a stratum of hard000. In January, 1901, the defendant first

baked clay known as “hard pan,” below which purchased 160 acres of this water-bearing stratum lay the saturated gravels, and which land in Perris Valley, and from wells then stratum prevented the capillary drawing of existing, and from additional wells which it

the waters to any point so near the surface bored, pumped water from the underlying as to aid vegetation; that the effect of this saturated gravels and carried it through its hard pan was to turn the roots of trees, flumes and conduits for about 40 miles to the shrubs, and grasses, which could not penelands of its stockholders at Corona. Subse- trate through it, giving all vegetation but a quently, in March, 1903, the defendant pur- shallow and worthless soil in which to enchased 3,310 additional acres of like lands.

deavor to live; moreover, that when surface Thereafter it pumped and conveyed from its irrigation was attempted, by reason of this lands so acquired 600 or more inches during hard pan the waters were never returned, the irrigating season of each year. Upon and never could return, to the underlying March 1, 1904, some six landowners in gravels from which they were taken, but

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