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entitled thereto, and for this purpose said commissioners shall have power to administer oaths. The commissioners shall make their report to the court, and the same shall be affirməd or set aside, for cause shown; and, if set aside, a new commission shall be appointed, who shall proceed in like manner; and as soon as such award shall be affirmed, it shall have the effect of a judgment, and execution may issue thereupon by the clerk of the court.
Sec. 10. This act shall take effect from and after its passage.
ARTICLE 634. 1. Certain provisions made applicable. 2. Rights 534. 4. Duties in furnishing water. Rates to be charge
in possessing, etc., lands, etc. Proceedings to ed. 6. Rights in towns and cities in laying appropriate lands, etc. 3. Privileges and fran pipes, etc. 6. Existing corporations may reincorchises.
porate under this act. Act of April 22, 1858, for the Incorporation of Water Companies. Art. 534, Sec. 1. The provisions of an act entitled an act to provide for the formation of corporations for certain purposes, passed April fourteenth, one thousand eight hundred and fifty-three, and the provisions of an act entitled an act to amend an act entitled an act to provide for the formation of corporations for certain purposes, passed April fourteenth, one thou. sand eight hundred and fifty-three, and passed on the thirtieth day of April, one thousand eight hundred and fifty five, shall extend to and apply to all corporations already formed, or hereafter to be formed, under said acts, for the purpose of supplying any city and county, or any cities or towns in this state, or the inhabitants thereof, with pure fresh water.
Sec. 2 Xany company incorporated for the purposes specified in the preceding section, shall have the right to purchase, or to appropriate and take possession of, and use and hold, all such lands and waters as may be required for the purposes of the company, upon making compen. sation therefor. The mode of proceeding to appropriate and take possession of such lands and waters, when parties cannot agree upon a purchase thereof, shall be the same as prescribed in sections twenty-seven, twenty-eight, and twenty-nine, of an act to provide for the incorporating of railroad companies, passed April twenty-second, one thousand eight hundred and fiftythree, except that such proceedings shall be had before the county judge of the county in which such lands or waters, or both, may be situated; provided, that all reservoirs, canals, ditches, pipes, aqueducts, and all conduits heretofore built, or that hereafter may be constructed by any corporation formed under this act, or claiming the privileges, rights, and immunities herein granted, or any of them, shall be used exclusively for the purpose of supplying any city and county, or any cities or towns, in this state, or the inhabitants thereof, with pure fresh water.
Sec. 3. All privileges, immunities, and franchises, that may hereafter be granted to any individual or individuals, or to any corporation or corporations, relating to the introduction of fresh water into the city and county of San Francisco, or into any city or town in this state, for the use of the inhabitants thereof, are hereby granted to all companies incorporated, or that may hereafter become incorporated, for the purposes aforesaid.
Sec. 4. All corporations formed under the provisions of this act, or claiming any of the privileges of the same, shall furnish pure fresh water to the inhabitants of such city and county, or city or town, for family uses, so long as the supply permits, at reasonable rates and without distinction of persons, upon proper demand therefor, and shall furnish water, to the extent of their means, to such city and county, or city or town, in case of fire or other great necessity, free of charge. And the rates to be charged for water shall be determined by a board of commissioners, to be selected as follows: two by such city and county, or city or town authorities, and two by the water company; and in case that four cannot agree to the valuation, then, in that case, the four shall choose a fifth person, and he shall become a member of said board; if the four commissioners cannot agree upon a fifth, then the sheriff of the county shall appoint such fifth person. The decision of a majority of said board shall determine the rates to be charged for water for one year, and until new rates shall be established. The board of supervisors, or the proper city or town authorities, may prescribe such other proper rules relating to the delivery of water, not inconsistent with this act and the laws and constitution of this state.
Sec. 5. Any corporation created under the provisions of this act shall have the right, subject to the reasonable direction of the board of supervisors or city or town authorities, as to the mode and manner of exercising such right, to use so much of the streets, ways, and alleys, in any town, city, or city and county, or any public road therein, as may be necessary for laying pipes for conducting water into any such town, city, or city and county, or through or into any part or parts thereof.
Sec. 6. Any corporation heretofore formed for the purposes specified in this act, shall have the right to reincorporate under the provisions of this act, without losing, forfeiting, or diminishing any of the rights, privileges, franchises, or immunities which they have heretofore lawfully acquired.
Act of April 28, 1860, to amend “An Act creating a Board of Commissioners and the office of Overseer in each
township of the several counties of this State to regulate Water-Courses within their respective limits," passed May 15, 1854. ART. 535, Sec. 1. Section 'fifteen of said act is hereby amended so as to read as follows: Section 15. Any person or persons who, under this act, shall conduct water, by ditch or otherwise, across the lands of any person or persons, shall pay to such person or persons owning such lands, such compensation as may be agreed upon by the parties owning the lands; and in case the parties cannot agree, each party shall appoint one arbitrator, and in case either party shall neglect or refuse to appoint such arbitrator for the space of three days, after written notice has been served on the parties so refusing or neglecting, requiring him to make such appointment, then it shall be lawful, and shall be the duty of the county judge to appoint one arbitrator for the party so refusing, and the two so appointed shall select a third. The arbitrators so chosen may appraise the lands used for ditching purposes, and shall hear and determine all questions of damages arising from the taking and use thereof; and to award the amount of the same to the parties entitled thereto, and for this purpose said arbitrators shall have power to administer oaths. Before proceeding to appraise said lands, said arbitrators shall make and subscribe an oath that they will faithfully and honestly perform the duties of their appointment. The said arbitrators shall make their report to the county court, and the same shall be affirmed or set aside for cause shown; and if set aside, new arbitrators shall be appointed in the same manner as above, who shall proceed in like manner, and as soon as such award shall be affirmed, it shall have the effect of a judgment, and execution may be issued
ereupon by the clerk of the court; provided, that nothing in this ct shall be so construed as to apply to the mining interests of this state.
1. Possession or actual appropriation must be the test of priority in all claims to the use of water, wherever such claims are not dependent on the ownership of the land through which the water flows. Kelly'o. Natoma Water Co. 6 Cal. 105.
Such appropriation cannot be constructive. Id.
2. The erection of a dam across a natural water-course, is an actual appropriation of the water at that point but not below it, even though the water flowing over the dam is brought into the water-course by canals constructed by the owners of the dam. Id.
3. A general allegation in a complaint for the diversion of water, that plaintiffs were entitled to all the water flowing into the canon at the head of their ditch, entitles them to prove a diversion of water from the smaller branches of the canon supplying water to that point. Priest v. Union Canal Co. 6 Cal. 170.
4. In constructing canals, under the license of the state, the survey of the ground, planting stakes along the line, giving public notice, and actually commencing and diligently pursuing the work, is as much possession as the nature of the subjeet will admit, and forms a series of acts of ownership which must be conclusive of the right. Conger v. Weaver, 6 Cal. 548.
5. In a suit for injury to a mining claim, by the breaking of defendant's canal, which was constrncted prior to the location of plaintiff's claim, neither party claiming ownership of the soil, and no negligence in fact being shown other than that which the law would presume from the breaking of the ditch; Held, that the rights of the parties were acquired at the dates of their respective locations, and that the rule of “coming to a nuisance" would apply. Tenney v. Miners' Ditch Co. 7 Cal. 335.
The ditch owners would be responsible, in such case, for wanton injury or neglect. Id.
6. Where defendants dug a ditch above one previously constructed by plaintiff and thereby diverted the water of the stream from plaintiff's ditch, damages may be recovered, but an injunction will not be sustained unless the complaint aver that the injury was continuing, or threatened to be so. Coker v. Simpson, 7 Cal. 340.
7. A wharf company is bound to keep its wharf in proper condition, and is liable for losses sustained by reason of its neglect to do so. Fina v. Vallejo Street Wharf, 7 Cal. 253.
8. Actions for the diversion of waters of ditches are in the nature of actions for the abatement of nuisances, and may be maintained by tenants in common in a joint action. Parke v. Vilham, 8 Cal. 77.
The line upon which a ditch is actually intended to be dug should be run within a reasonable time after the preliminary survey has been made, in order to make the right of the ditch owners date back to the survey. What is a reasonable time must depend upon the circumstances of the case. Id.
9. Where a party stands by and sees a ditch owner appropriate the water of a creek to his own use, at a great expense, and does not inform him of his clain to the water, he and his vendees are estopped from afterwards claiming it. Id.
10. Possession of public land gives the right to the use of water flowing through it for natural wants, but does not confer the right to divert it, and prevent its running upon the adjoining land of another who has taken the same up subsequently, but before the attempt to change the course of the water. Crandall v. Woods, 8 Cal. 136.
11. Rights to the use of water become fixed after five years' adverse enjoyment of the same. Id.
12. Notice of intention to appropriate the waters of a certain stream, is evidence of possession ; but of itself alone is not sufficient. Thompson v. Lee, 8 Cal. 275.
13. The first appropriator of water for mining purposes, is entitled to have the water flow, without material interruption, in its natural channel. B. and A. W. and M. Co. v. York M.Co. 8 Cal. 327.
He is entitled to the water sufficient to fill his canal or ditch, as it existed at the time of the subsequent appropriation. ld.
14. The right of the first appropriator of water is equally protected from damage occasioned by locators above as well as below him. Hill v. King. 8 Cal. 336.
15. A complaint that plaintiffs had, for a long time, conveyed water from a stream for mining purposes, by means of a ditch, and had thus acquired a prior right to the enjoyment and use of the water, and were in the peaceable possession thereof, wben defendants wrongfully diverted the same and deprived plaintiffs thereof, and were continuing so to do, is sufficient to maintain a prayer for an injunction. Tuolumne W. Co. v. Chapman, 8 Cal. 392.
16. Where defendants bad constructed a ditch for mining purposes, and plaintiffs had subsequently constructed another, taking its water from the same stream, and brought suit for damages sustained by reason of the enlargement of defendant's ditch, made after the commencement of plaintiff's ditch, causing a diversion of a greater quantity of water; and praying for an injunction; Held, that defendants are not limited to the quantity of water turned into their ditch in the first instance, unless by the plan, size and grade
of the ditch it was not capable of carrying more water than was then diverted. White v. Todd's Val. W. Co. 8 Cal. 443.
17. A person has no right to construct a ditch through the inclosure of another without his consent. Weimer v. Lowery, 11 Cal. 104.
18. Water is not abandoned by turning it from an artificial ditch into a natural water-course for the purpose of conducting it to another point to be there used, but may be taken out and used by the party thus conveying it; so that he does not in doing so diminish the quantity of the natural waters of the stream to tho injury of previous appropriators. Butte Canal and Ditch Co. v. Vangbn, 11 Cal. 143.
The burden of proof devolves on the party thus mingling the waters. Id. 19. The first appropriator of the water of a stream passing through public lands, has the right to the use and enjoyment, to the extent of his original appropriation; and its quality can not be impaired so as to defeat the purposes of its appropriation. To this extent his rights go and no further. Subsequent appropriations may make such use of the channel of the stream as they think proper in subordination to those rights. Id.
See Mixing Laws.
WEIGHTS AND MEASURES.
See new act. bih do talo Act of April 12, 1858.
346+63 1.73 Sec. 1. Section fourteen of the act passed March thirtieth, one thousand eight hundred and fifty, entitled an act to establish a standard of weights and measures, is hereby amended so as to read as follows:
Art. 536, Sec. 14. The secretary of state shall be, ex officio, state sealer of weights and measures; and he is hereby required to appoint a sufficient number of deputy or county sealers, not to exceed one in each county, who shall perform the duties required under the existing acts regulating weights and measures, now in force, or which may hereafter be in force, in this state. The deputies, or county sealers, shall hold office for two years after their appointment.
Sec. 2. Section first of the act passed April thirtieth, one thousand eight hundred and fiftythree, to amend the act to establish a standard of weights and measures, passed March thirtieth, one thousand eight hundred and fifty, is hereby amended so as to read as follows:
Sec. l. It shall be the duty of each and every deputy or county sealer, who may be appointed under section first of this act, to procure, at the expense of the county in which he may be appointed, a complete standard of weights and measures, in conformity with that established by the congress of the United States, which shall consist of a yard, a pound weight, liquid gallon, and a half-bushel, and the usual subdivisions of such weights and measures; the said standards to be examined and certified to by the secretary of state, who shall procure, at the expense of the state, a complete standard of weights and measures, in conformity with this act.
Sec. 3. All persons using any weights, measures, or beams, by which any commodity or article of trade or traffic is weighed or measured, shall have the same certified to by the deputy or county sealer, at least once in each year. And any person hereafter using any such weights, measures, or beams, not conformable to the standard of the county in which such weights, measures, or beams, are used; or, without having such weights, measures, or beams, first certified to as aforesaid, shall be liable to a criminal prosecution therefor, and, upon conviction, shall be fined in any sum not less than twenty-five nor more than two hundred dollars for each and every offense. Said fines shall be paid to the county treasurer, for county purposes.
Sec. 4. It is hereby made the duty of the deputy or county sealers, to report immediately to the district attorney of the county for which they may act, all violations of section three of this act that may come to their knowledge, whose duty it shall be to prosecute all persons so offending.
Sec. 5. The deputy or county sealers, shall have power to inspect, at any time in the daytime, all such weights
, and measures, or beams, at or in the places they are so used. And any person refusing to allow such inspection, upon reasonable request, shall be liable to the penalties of section three of this act.
1. The strictness of the rules of the civil law, requiring five, or at least three witnesses to a will, was relaxed in favor of remote districts. Castro v. Castro, 6 Cal. 158.
By the customs of California, under Mexican rule, which have the force of law, two witnesses were sufficient to a will. Id.
2. It seems there never was a probate court in California, prior to the organization of the state, and that probate of a will was unknown. Id.
A will takes effect on proof of its execution, in the absence of a statute requiring it to be probated. Id.
3. After twenty years' ncquiescence in the terms of a will, an heir should not be allowed to dispute his own acts, or to contest the will on abstract points of law which never had force in California. Id.
4. The several statutes of this state relating to wills, do not apply to wills executed previous to their passage. There is no provision for the probate of such wills, and they must rest for their validity upon the laws under which they were made, Tevis v. Pitcher, 10 Cal. 465.
5. Where a will was attested by two witnesses, and made before a person who was a sindico; the sindico was a competent witness. Id.
6. Whero the testator and witnesses to a will are dead, proof of the signature of the witnesses and of the testator will be sufficient evidence of its execution. Id.
IN D E X.
AGRICULTURE. Annual appropriation of
Societies for ; how incorporated; powers ;
Debts; liabilities of managers....... ....... 879 13
Cannot be sued for premiums.......
Corporations for purposes of. Quantity of
land which may be held. How formed. 906
AMADOR COUNTY. Fees of public adminis-
APPEAL. In civil cases. When may be
........ 923 121
Judicial decisions concerning............. 928
876 6 In criminal cases. From justices', mayors'
and recorders' courts, to be transferred
to county court......
APPRENTICES. See INFANCY.
877 7 ARBITRATION. Judicial decisions concern-
877 7 ARMS, etc. May be issued to students of
889 45 In criminal cases. Proceedings on in jus-
to district court...........
ASSAYER OF ORES AND METALS. Ap.
877 9 pointment; qualifications; term; bond. 880 15
ASSESSOR-COUNTY. Bonds in Klamath,
Bond in El Dorado county....
Bond in San Diego and San Bernardino
Term of office.........
...... 961 137
........ 954 129