falling within any of these provisions, when the line was definitely fixed, were excluded from the granting clause of the act. Ard's Ard's homestead rights attached prior to the definite location of any line or railroad. He is therefore within the exact provision of one of the reservations in the grant. The pretended withdrawal, if given the effect contended for by plaintiffs in error, would be giving such commissioner power to nullify one of the important reservations in the grant. This precise question was before the Supreme Court in Nelson v. Northern Pacific Railway, 188 U. S. 108, 23 Sup. Ct. 302, 47 L. Ed. 406. The grant contained the following reservations: "That there be, and thereby is, granted to the 'Northern Pacific Railroad Company,' its successors and assigns, for the purpose of aiding in the construction of said railroad and telegraph line to the Pacific Coast, and to secure the safe and speedy transportation of the mails, troops, munitions of war, and public stores over the route of said line of railway, every alternate section of public land, not mineral, designated by odd numbers, to the amount of twenty alternate sections per mile on each side of said railroad line, as said company may adopt, through the territories of the United States, and ten alternate sections of land per mile on each side of said railroad whenever it passes through any state, and whenever on the line thereof the United States have full title, not reserved, sold, granted, or otherwise appropriated, and free from pre-emption or other claims or rights at the time the line of said road is definitely fixed, and a plat thereof filed in the office of the commissioner of the general land-office; and whenever, prior to said time, any of said sections or parts of sections shall have been granted, sold, reserved, occupied by homestead settlers, or pre-empted, or otherwise disposed of, other lands shall be selected by said company in lieu thereof, under the direction of the Secretary of the Interior, in alternate sections, and designated by odd numbers, not more than ten miles beyond the limits of said alternate sections." An order of withdrawal dated November 1, 1873, was issued by the commissioner of the land office, which included the land in controversy in that action. Subsequently, and in 1881, and before the railroad company had definitely located its line, Nelson made a homestead settlement upon a portion of the land within the place limits as shown by the map of definite location. The contention was that the withdrawal order withdrew the land from pre-emption and homestead settlement. In the opinion, at page 116 of 188 U. S., at page 304 of 23 Sup. Ct. (47 L. Ed. 406), the court said: "But we have also seen, looking at the third section, which was the granting section of the act, that Congress did not grant every oddnumbered alternate section within the general limits specified, but only the odd-numbered alternate sections to which the United States

87 P.-24

had full title, and which had not been previously reserved, sold, granted, or otherwise appropriated, and which were free from preemption or 'other claims or rights' at the time the line of the road was definitely fixed; giving to the railroad company the right to select lands within certain limits in placeof such as were found at the date of definite location to have been disposed of or to be 'occupied by homestead settlers.'" It was held that the order of withdrawal did not withdraw the land from homestead settlement, and many cases are cited sustaining this conclusion. In the opinion the expressions used by Mr. Justice Field in Buttz V. Northern Pacific Railroad, 119 U. S. 55, 71 72, 7 Sup. Ct. 100, 108, 30 L. Ed. 330, relied upon by plaintiffs in error to the effect that: "When the general route of that road was made known by a map duly filed and accepted, 'the law withdraws from sale or preemption the odd sections to the extent of forty miles on each side. The object of the law in this particular is plain; it is to preserve the land for the company to which, in aid of the construction of the road, it is granted' "

is quoted and commented on as follows: "But it is evident, in view of both prior and subsequent decisions, that this language is not to be taken literally, or apart from the other portions of the opinions of the eminent jurist who delivered the judgment of the court. If, upon the filing and acceptance of the map of general route, the law withdrew the odd-numbered sections, then the previous holding in many cases, that until definite location the grant was a float, with no interest in specific sections being acquired by the railroad company, would be meaningless, and there would be some difficulty in Congress appropriating such lands prior to definite location. Indeed, it is manifest that the court did not mean to announce any new doctrine in the Buttz Case, for Mr. Justice Field, when delivering judgment in that case, said that the charter of the Northern Pacific Railroad Company contemplated 'the filing by the company, in the office of the commissioner of the general land office, of a map showing the definite location of the line of its road, and limits the grant to such alternate odd sections as have not at that time been reserved, sold, granted, or otherwise appropriated, and free from pre-emption, grant, or other claims or rights." Again, in the later case of Sjoli v. Dreschel, 199 U. S. 564, 26 Sup. Ct. 154, 50L. Ed. 311, it was said that: "No right to land within indemnity limits will attach in favor of the railroad company until after selection made by it with the approval of the Secretary of the Interior. That up to the time such approval is given, lands within indemnity limits, although embraced by the company's list of selections, are subject to be disposed of by the United States, or to be settled upon and occupied under pre-emption and homestead laws of the United States, and that the Secretary of the Interior has no authority

to withdraw from sale or settlement lands that are within indemnity limits which have not been previously selected, with his approval, to supply deficiencies within the place limits of the company's road." A critical examination of the cases which are said to maintain a contrary rule will show that they were cases arising under grants which directly authorized a withdrawal, or between original and subsequent grantees claiming the same lands; and in the latter cases the question was, what was to be understood by the term "public lands" as used in the subsequent grant; that is, whether it was exclusive of lands covered by a former grant not yet earned? It happened in many of the cases that the lands covered by the prior grant had been withdrawn by the Secretary of the Interior, but this was not the controlling feature of the decision. The holdings generally have been that the term "public lands" as used in the subsequent grant excluded lands included within prior grants.

Wolsey v. Chapman, 101 U. S. 755, 25 L. Ed. 915, cited by plaintiffs in error, is a case of the first class. This controversy arose over a general land grant made to the state of Iowa of 500,000 acres of land for internal improvements, dated September 4, 1841. These lands were to be selected from any public lands "except such as is or may be reserved from sale by *** proclamation of the President of the United States." April 6, 1850, the Secretary of the Interior directed that certain lands in the state of Iowa be reserved from sale, in order to settle the rights of rival claimants thereto. On July 20, 1850, the agent of the state of Iowa having in charge the school lands and school fund gave notice at the general land office that he had selected a portion of lands thus withdrawn as a part of the 500,000-acre grant under the act of 1841. It was held that the order of withdrawal was authorized by the grant, and all lands which had at the time been reserved, and all that might thereafter be reserved, by the proclamation of the President were excepted from the grant. It was also held that the order of withdrawal issued by the Secretary of the 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. O'Brien, 139 Fed. 614, 71 C. C. A. 598, also relied upon by plaintiffs in error, does not involve the question we are called upon to decide. It does, however, recognize the rule as here stated. In distinguishing the question presented to it from the one in Nelson v. Northern Pacific, supra, and other similar cases, the court said: "None of these cases has particular reference to, or makes the decision turn upon, the clause, 'there be, and hereby is, grauted * * every alternate section of public land,' which makes the grant one in præsenti of land then public, but instead, each had particular reference to,

***

and makes the decision turn upon, the limitation on the granting clause, which makes it also requisite that 'the United States have full title, not reserved, sold, granted, or otherwise appropriated, and free from preemption or other claims or rights at the time the line of said road is definitely fixed.' They all recognize the well-established rule that the grantee under a railroad land grant acquires, by designating the general route of its road, only an inchoate right to the oddnumbered sections granted by Congress, and that until the definite location of the road these sections remain within the disposing power of Congress, and this, even though they be withdrawn for the protection of the grant, as in the present case."

The well-established rule, therefore, is that where lands are granted to a railroad with certain reservations, for purposes designated in the grant, in the absence of express authority, the Secretary of the Interior or the land commissioner is powerless to make any order with reference thereto which will have the effect to defeat the reservations. Congress has exclusive authority to dispose of the public domain, and, in the absence of its adoption of any specific rule for carrying out its purpose, the Land Department may adopt such rules and regulations as to it may seem proper for that purpose; but in the absence of express authority that department is powerless to adopt a procedure which will defeat the expressed intention of Congress in the disposition of the public domain. Congress in the grant in question expressly reserved from its operation all lands which should be sold or reserved by the United States, or to which the right of pre-emption or homestead settlement had attached when the line of said railroad or branches are definitely fixed. The lands falling within these reservations were not granted to the railroad companies, and the land commissioner had no authority by any act to deprive those for whose benefit the reservations were made of the privilege of exercising that right.

The judgment is affirmed. All the Justices concurring.

2. CRIMINAL LAW APPEAL - HARMLESS ERROR.

An erroneous instruction may be rendered harmless by other instructions given, and when such condition exists, the judgment of the trial court will not be reversed on account of such error.

[Ed. Note.-For cases in point, see vol. 15, Cent. Dig. Criminal Law, §§ 3151-3158.] 3. INFORMATION-SUFFICIENCY.

When an information charging a defendant with a misdemeanor alleges that the act which constitutes the offense was done knowingly and willfully, no other or further criminal intent need be alleged or proven.

[Ed. Note. For cases in point, see vol. 27, Cent. Dig. Indictment and Information, §§ 256, 257.]

(Syllabus by the Court.)

Appeal from District Court, Morris County; O. L. Moore, Judge.

C. A. Gregory was convicted of selling intoxicating liquors, and appeals. Affirmed.

The defendant is a druggist and pharmacist. He held a permit to sell intoxicating liquor under the prohibitory law in Morris county. On the 18th day of April, 1906, he was convicted in the district court of selling liquor for medical purposes without requiring the applicant to make the affidavit provided by law, and without the name of the applicant being subscribed thereto in ink. The information was drawn under section 3737, Gen. St. 1905, the material parts of which, so far as this case is concerned, read: "Any druggist having a permit to sell intoxicating liquors under the provisions of this act may sell the same only by himself in person or by a clerk who is a registered pharmacist or assistant pharmacist under the laws of this state, for medical purposes only, upon the printed or written affidavit of the applicant setting forth the particular medical purpose for which such liquor is required, the kind and quantity desired; that it is necessary and actually needed for the particular purpose by the patient to be named; and that it is not intended for a beverage, nor to sell nor give away; and that the applicant is over twenty-one years of age, which affidavit shall be in the following form, and subscribed by the applicant in ink." The information contained five counts. One was withdrawn. The first count, after the formal and introductory parts, reads: "C. A. Gregory, being then and there a pharmacist and druggist, and having a permit to sell intoxicating liquors for medical, mechanical, and scientific purposes in Morris county, state of Kansas, did, on or about the 15th day of May, A. D. 1905, at the county of Morris and state of Kansas, unlawfully, knowingly, and willfully sell and barter intoxicating liquors to one R. A. Henderson for medical purposes without requiring the purchaser of said liquor to make the affidavit required by law as a condition precedent to such sale, and without requiring said purchaser of said intoxicating liquors to sign the affidavit required by law in ink, contrary to the statutes in such case made

and provided, and against the peace and dignity of the state of Kansas." The charging part of each of the other counts was in the same language, except where the applicant was a different person. The defendant moved to quash each count of the information, for the reason that it did not state a public offense, was indefinite, uncertain, and failed to inform the defendant of the nature of the charge against him. This motion was overruled. A motion to make each count more definite and certain was also filed and overruled. The objections made to the information were more specifically presented on the trial, as the evidence was being introduced, when it was urged that the averment of the information concerning the defendant's failure to take the affidavit of the applicant stated a conclusion and not a fact, and did not sufficiently apprise the defendant of the facts which he would be compelled to answer. It was also contended that the statute

requiring druggists to sell only upon an affidavit of the applicant signed in ink is directory merely, and noncompliance therewith not a crime.

It appears from the evidence that when the purchaser made application for the liquor, the druggist filled up the blanks in a printed statement, which was in proper form, the applicant then signed such statement with a lead pencil, and received the liquor without the administration of an oath, made with the uplifted hand or otherwise.

The defendant requested the court to give the following instruction to the jury, which was refused: "You are further instructed that to constitute a criminal offense a criminal intent is necessary in this class of cases." The court, however, gave instructions to the jury which read: "To the charge in the several counts of the information the defendant has entered his plea of not guilty. This casts the burden of proof upon the state to establish by a preponderance of the evidence each of the material allegations of each count of the information before you can find the defendant guilty under such count." "In order to convict the defendant under the first count of the information, the jury must be satisfied from the evidence beyond all reasonable doubt: First. That on or about the 15th day of May, A. D. 1905, and within the county of Morris and state of Kansas, the defendant, C. A. Gregory, was then and there a pharmacist and druggist, and as such pharmacist and druggist had a permit from the probate court of Morris county to sell intoxicating liquors for medical, mechanical, and scientific purposes. Second. That on or about the 15th day of May, and within this county, and within two years prior to the filing of the information in this case, and while so being a druggist and having a permit, as aforesaid, the said defendant, C. A. Gregory, unlawfully, knowingly, and willfully sold and bartered intoxicating liquors

to one R. A. Henderson for medical purposes without requiring the purchaser of said liquor to make the affidavit required by law as a condition precedent to such sale, and without requiring the said purchaser of said intoxicating liquors to sign the affidavit required by law in ink, as provided by the statute above quoted to you. These are the essential ingredients of the offense charged in the first count of the information, and if the state has proven to your satisfaction beyond a reasonable doubt each of the ingredients above named, then it would be your duty to find the defendant guilty under the first count of the information." same instructions were repeated as to each count.

The

John Maloy, Roark & Roark, and Loomis, Blair & Scandrett, for appellant. C. C. Coleman, Atty. Gen., W. J. Pirtle, and M. B. Nicholson, for the State.

GRAVES, J. (after stating the facts). We do not think the information fatally defective. The averment therein concerning the affidavit is equivalent to a statement that no affidavit whatever was made by the applicant. This is sufficient. The whole embraces all the parts. The contention that the statute requiring the applicant to make an affidavit and sign his name thereto in ink is merely directory has already been overruled by this court in the case of State v. Davis, 44

Kan. 60, 24 Pac. 73. In that case Commissioner Strang said: "We also think that the very object of the provisions of the statute in forbidding the pharmacist who is permitted to sell for medical purposes from so selling until the applicant for the liquor has subscribed with ink and sworn to an affidavit properly filled out, under the statute, is to prevent the sale and use of such liquor as a beverage. The pharmacist is bound to know all the provisions of the law. If the applicant honestly wants intoxicating liquors for medical use, he will not hesitate to make the necessary affidavit required by the law. But he may well hesitate about making such affidavit when he wants the liquor for use as a beverage, because the statute declares that if he makes a false affidavit he shall be guilty of perjury. It is the fear of prosecution for perjury that causes the shuffling in connection with the making of the affidavit, and which results in incomplete affidavits, such as were made in this case. The whole force and effect of the law may rest upon this affidavit, for if it may be evaded, as in this case, by simply signing it with a pencil and not swearing to it, then any person, by simply saying in writing that he wants a certain quantity of liquor, and that he wants it for medical purposes, can get it; and it is well suggested in the state's brief that if that could be done, it would become very fashionable to drink for medical purposes. We think all the provisions of the statute relat

ing to the affidavit required of the applicant before a sale of intoxicating liquor can be made to him are material and vital parts of a law to prevent the sale and use of intoxicating liquor as a beverage, and that sales by a pharmacist without having observed them subjects the said pharmacist to punishment by fine and imprisonment."

The evident object of these requirements of the statute furnish an unmistakable guide for its interpretation. Manifestly it was intended that an oath, with all its solemnities and formalities, should be administered to every applicant as a check upon sales of liquor to persons desiring to use it as a beverage. The law provides that these applications shall be filed in the office of the probate judge, where they are open to public inspection and examination. They might become useful as evidence in prosecutions for 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 of use in examination, lapse of time, or otherwise. The provision that the name shall be signed in ink subserves this purpose. The instruction given wherein the expression "preponderance of the evidence" occurs was, of course, erroneous, but the court took up each count of the information submitted to the jury separately, and stated fully and clearly all the elements of the offenses char

ged therein, and stated that each and all of such elements must be established beyond all reasonable doubt before the defendant could be convicted. This rendered the expression complained of harmless.

The instruction requested by the defendant as to the necessity of a criminal intent was sufficiently covered by the instruction given by the court that the act of the defendant must have been done knowingly and willfully before he could be convicted. We do not decide that it would have been error if these words had been omitted from the charge, but since they were used, the defendant has no reason to complain.

These are the principal questions presented by the defendant. Some others are suggested, but they are unimportant, and we think it unnecessary to discuss them.

We are unable to find any error in the record. The judgment is affirmed. All the Justices concurring.

(149 Cal. 531)

NEWPORT et al. v. TEMESCAL WATER CO. (L. A. 1,788.)

(Supreme Court of California. Aug. 10, 1906. On Rehearing, Sept. 8, 1906.)

1. WATERS AND WATER COURSES-SUBTERBANEAN CONNECTION-EVIDENCE.

Evidence in an action to enjoin the pumping and carrying off of waters of a valley held to sustain a finding that there was no subterranean connection between the waters thereof and those of another valley.

2. SAME DIVERSION-INJURY TO LAND-EVI

DENCE.

Evidence in an action to enjoin the pumping of water held to sustain a finding that the land from under which it was drawn was, in any case, arid and unprofitable.

3. SAME INJUNCTION-DAMAGES.

Where it is to the interest of the public that water be pumped and diverted to supply the needs of a town, and the monetary injury to the land from under which it is taken can be determined, an absolute injunction will not be granted, but merely one conditioned on failure to make good the damage.

[Ed. Note.-For cases in point, see vol. 48, Cent. Dig. Waters and Water Courses, § 117.] In Bank. Appeal from Superior Court, Riverside County; J. S. Noyes, Judge.

Action by William Newport and others against the Temescal Water Company. Judgment for defendant. Plaintiffs appeal. Affirmed.

. H. C. Rolfe and C. C. Haskell, for appellants. Joseph H. Call, Purington & Adair, and E. W. Freeman, for respondents.

HENSHAW, J. Perris Valley is a basin of 40 or 50 square miles in extent. The surface soil is of inferior character, arid and alkaline. At a depth varying from 8 to 40 feet below the surface the land consists of

unstratified silt, detritus, and gravels. The voids in this soil carry water, and the waterbearing soils are from 100 to 400 feet in depth. Contiguous to Perris Valley is Menefee Valley, a somewhat similar, though smaller, tract of land. The surface soil of the

Menefee Valley is of better quality than that of Perris Valley, and, like the latter, rests on water-bearing gravels. The Temescal Water Company, defendant herein, is a corporation engaged in the collection and distribution of waters for the use of its stockholders and others. It supplies the inhabitants of the town of Corona with water. The town of Corona, with a population of 2,700, has grown up dependent upon the water supply of defendant, and property to the value of $4,000,000 is subject to complete destruction should that supply fail. Of that supply all except an insignificant portion is taken by defendant from Perris Valley. In collecting and In collecting and husbanding this water and delivering it to its consumers the defendant has expended nearly $1,000,000, and the value of its water rights and other properties is at least $2,000,000. In January, 1901, the defendant first purchased 160 acres of this water-bearing land in Perris Valley, and from wells then existing, and from additional wells which it bored, pumped water from the underlying saturated gravels and carried it through its flumes and conduits for about 40 miles to the lands of its stockholders at Corona. Subsequently, in March, 1903, the defendant purchased 3,340 additional acres of like lands. Thereafter it pumped and conveyed from its lands so acquired 600 or more inches during the irrigating season of each year. Upon March 1, 1904, some six landowners in

Perris Valley, one of whom, the plaintiff Newport, is also a landowner in the Menefee Valley, brought this action for an absolute injunction to restrain the defendant from further pumping and carrying off the waters of Perris Valley. The essential allegations of their complaint, upon which were founded their demand for an injunction, are that the plane of saturation, when not illegally interfered with, stands from within 8 to 20 feet of the surface of the ground; that upon their lands were growing trees, vines, grasses, and shrubbery, sustained by the waters so standing at this level; that by capillarity, percolation, and like natural forces, these waters were drawn toward the surface, moistening and nourishing the roots of herbage and vegetation; that the effect of the pump-. ing of defendant was to lower the plane of saturation so as to render it impossible for the water to reach the roots and thus to destroy these vegetable growths. It was further charged that each of the plaintiff's used, and had used, large quantities of the water for surface irrigation, for the growing of crops and for the nourishing of vines and trees; that this lowering of the water plane by defendant made pumping more difficult and expensive and would in time deprive plaintiffs of all water. Finally, it was alleged that Menefee Valley, with Perris Valley, formed a part of one and the same catchment basin, and that the effect of defendant's pumping in Perris Valley was to lower the plane of saturation under plaintiff Newport's land in Menefee Valley, and thus to

work the same disastrous result. The defendant answered by denying the alleged acts and the resultant damage. It denied any subterranean connection between the waterbearing gravels of Perris Valley and Menefee Valley, and alleged that these valleys were disconnected and were in different water sheds. As to the lands in Perris Valley, it denied that in a state of nature the saturated gravels in any way contributed to the nourishment of the vegetation, and alleged that the lands were in great part alkaline and unfit for husbandry, and could not produce fair corps either from the subsurface waters, or from surface irrigation, or from both. Affirmatively it alleged that, underlying the surface of Perris Valley and but a few feet below the surface, was a stratum of hardbaked clay known as "hard pan," below which stratum lay the saturated gravels, and which stratum prevented the capillary drawing of the waters to any point so near the surface as to aid vegetation; that the effect of this hard pan was to turn the roots of trees, shrubs, and grasses, which could not penetrate through it, giving all vegetation but a shallow and worthless soil in which to endeavor to live; moreover, that when surface irrigation was attempted, by reason of this hard pan the waters were never returned, and never could return, to the underlying gravels from which they were taken, but