might come looking for me. He told me it was Kelly's mare. Jones led the Kelly mare and rode one of his, and I came along behind on a horse of mine, and we went north and east about forty miles across country until about two o'clock the following morning. Jones left me in the pasture there, said he would ride down to the house and see if this fellow was there, where he was going, came back and said it was all right. We took the mare down and put her in the barn A fellow by the name of Nelson came out and Jones introduced me to Nelson. We went in the house and Nelson got Jones and I a bite to eat and some coffee. We sat there and talked quite a while. I went to bed and Jones and Nelson sat up and talked. Jones came in while I was asleep and we slept together. We got up the next morning about the same time, about eight or nine o'clock. Jones planned to go home in the afternoon and instructed me to stay until the following morning and drive a cow home, which he had bought down there, which I did, arriving at Jones' ranch about five o'clock in the evening.

The foregoing is the substance of all the testimony of the witness Bush tending to connect Jones with the larceny. Jones testified, in substance, that Bush accompanied him to Pine Bluffs with the load of wheat; that they arrived there in the evening, had supper together, that he was at several places in the town with him during the evening up to about 9:30 o'clock, at which time he went to the hotel kept by Beaver, and went to bed there about 10 o'clock that evening. In that statement he was corroborated by Beaver, who testified that Jones went to bed about ten or between 10 and 11 o'clock. Jones denied being with Bush after about 9:30 o'clock, denied being with him or Bloom at Bloom's barn, or that any such conversation as related by Bush as taking place at the barn was had. Denied being at Bloom's barn that evening. Stated that he went to Anderson's livery barn to attend to his team before going to the hotel, and that Bush did not go with him. Denied being at the saloon. Hastings testified that Jones and Bush were at the saloon and that the three went to Anderson's barn about II o'clock,

and that he did not see them later. Bloom testified that he was not at his barn that evening with either Bush or Jones; that he left Jones on the street about 9:30 o'clock and went home and was not out again that night. That neither Bush nor Jones were at his barn that evening to his knowledge. That Bush told him he was going to Cheyenne on the train, No. 17, that night. (It appears from other testimony that No. 17 was due in Pine Bluffs at 10:10 p. m.) Mrs. Bloom testified that her husband came in about 9:30, or a few minutes thereafter, and went to bed about 10 o'clock. Jones further testified that Bush told him on the way to town that he was going out in the country that evening to a party, and later that he was going to Cheyenne. That he went home the next day, arriving there in the evening, and that Bush was not there. That he started to Nelson's alone the next morning for a cow which he had bought at a sale; that he overtook Bush about a mile or mile and a half from Nelson's riding a gray mare and asked him where was going, and he replied: "To Nelson's." That he had never seen this gray mare before that time and did not know to whom she belonged. That he was going right back home, and Bush said: “If you want to go back, I will drive the cow back for you tomorrow," which he did. That Nelson's place is about twenty-five miles from his place. Mrs. Jones testified that Bush was not at the Jones' place after he left to go to Pine Bluffs on November 21st, until he returned with the cow on the 24th; that Jones started for the cow in the morning about 7 or 7:30 o'clock, and that one Verne Seguine was there at that time. Seguine testified that he was at the Jones' place on the morning Jones started for the cow; that there was no one with Jones, and that he did not see Bush there at that time. W. A. Sherrill, who resided at Crawford, Nebraska, testified that he bought the mare from Nelson at Crawford; and that she was claimed and taken from him by Kelly.

We have set out at considerable length the material testimony in the case, as this court has always followed the rule that it will not reverse a judgment on the ground of the in

sufficiency of the evidence to support the verdict of a jury, or the findings of the trial court, if there is in the record substantial credible evidence to support it. But in the present case the only evidence upon which the jury could rightfully find the defendant guilty was the testimony of the witness Bush. Considering the character of that witness, the improbability of his story and the fact that he was directly contradicted by so many witnesses on material matters, forces one to the conclusion that his evidence is neither substantial nor credible. The animal was stolen from a barn a mile or more away from the town of Pine Bluffs, where the owner lived and was engaged in business, sometime during the night of November 21, 1916; and according to Bush's testimony it must have been before 10:30 on that evening. It is highly improbable that a thief at that time of night would take the stolen animal to a small town where the owner lived, and while business places were open and people were on the streets. There is no evidence that Jones was at Kelly's barn that night, or was out of Pine Bluffs.

The material evidence, claimed to be newly discovered, consists of the evidence of the man Nelson mentioned by the witnesses. In his affidavit attached to the motion for a new trial, he states, in substance, that on the afternoon or evening of November 23, 1916, John Bush came to his home and had with him two horses, one a gray mare. That Bush remained there that night, and the next morning Bush wanted to trade the mare to him, but no trade was made. That Bush then wanted to sell the mare to him and that he then bought the mare from Bush for fifty dollars. That he never purchased any horse or mare from William L. Jones, the defendant. That this was the same gray mare he took to Crawford, Nebraska, and sold there. That evidence was material; but, according to Jones' own testimony, he knew Bush was at Nelson's with this mare on Nov. 23; and there is no sufficient showing in the record of reasonable diligence to procure it and present it at the trial.

Reluctant as appellate courts are to set aside the verdict of a jury, a careful consideration of all of the evidence in

this case satisfies us that it is one of the few cases which comes within the exception to the general rule, and that there is not in this record sufficient substantial credible evidence to support the verdict and judgment. For that reason the judgment of the district court is reversed and the cause remanded for further proceedings according to law.

Reversed.

POTTER, J., and BURGESS, DISTRICT JUDGE, concur. BLYDENBURGH, J., being unable to sit, HoN. JAMES H. BURGESS, Judge of the Fourth Judicial District, was called in and sat in his stead.

STATE v. CAREY.

(No. 950; Decided Sept. 29th, 1919; 183 Pac. 785.) PUBLIC LANDS-PURCHASER FROM THE STATE MUST PAY PRIOR LESSEE FOR WATER IMPROVEMENTS-CONSTRUCTION OF STATUTESIMPLIED REPEAL.

1. To justify the presumption of an intent to repeal one statute by the enactment of another, either the two statutes must be irreconcilable, or the intent to effect a repeal must be otherwise clearly expressed.

2. Where two legislative acts are repugnant to, or in conflict with each other, the one last passed, being the latest expression of the legislative will, must govern although it contains no repealing clause.

3. A purchaser of school land from the state is obliged to pay a prior lessee the appraised value of irrigation ditches made thereon, and water rights acquired therefor by such lessee. The provisions of Compiled Statutes of 1910, Section 632, are controlling.

ORIGINAL PROCEEDINGS IN MANDAMUS on the relation of A. H. Marble against Robert D. Carey, Governor, and others comprising the State Board of Land Commissioners.

Clark and Haggard, for relator.

The rights of the original lessee are governed by the provisions of Sec. 632, C. S.; the provisions of Sec. 616, C. S.,

while in conflict, were apparently repealed by implication; at any rate, Sec. 632 is the more recent expression of the legislature on the subject, and should govern; the presumption of repeal is supported by the legislative history of the two sections, when considered in connection with other sections of the state land laws, bearing a relation to both. Sec. 616 may remain in force and effect for certain purposes; for example, in cases where the original lessee has reclaimed more than one quarter of the land, thus acquiring a right to successive leases, for a period of 25 years, at the end of which time the water rights and improvements should revert to the state; the purchaser having complied with the statute, Sec. 632 C. S., is entitled to a certificate of purchase.

D. A. Preston, Attorney General, for defendant.

Educational lands may be leased for periods not exceeding five years; water rights acquired by the original lessee become the property of the state at the expiration of the first five year lease, under the provision of Sec. 616 C. S., and the same rule should be applied at the expiration of each succeeding five year lease term; water rights thus acquired by the state could not be impaired by the subsequent enactment of Sec. 632 C. S.

Clark and Haggard, for relator, in reply.

If the leases upon which the provisions of Section 616 are founded could not be lawfully given, and the preferential right to renewals be void, there could be no transfer of water rights growing out of a transaction under a void statute. The contention that Sec. 632 cannot be given retroactive effect, so as to apply to a lease granted prior to its enactment, is not supported by the authorities, since Sec. 632 is a repealing act (36 Cyc. 1224). Occupying claimant or betterment acts may operate retrospectively (22 Cyc. 15; Beard v. Dansby, 48 Ark. 183, 2 S. W. 701; Fee v. Coudry, 45 Ark. 410; Claypool v. King, 21 Kan. 602; Whittney v. Richardson, 31 Ver. 300; Mills v. Geer, 111 Ga. 275, 52 L. R. A. 934.