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the county treasurers of this state, all indebtedness of the state, received by them prior to the fifteenth day of March, one thousand eight hundred and fifty-seven, under the authority of sections four and five of the act of one thousand eight hundred and fifty-five, providing for the sale of swamp and overflowed lands, belonging to the state; provided, controller's warrants, received for taxes, by the treasurer of San Mateo county, prior to the fifteenth day of January, one thousand eight hundred and fifty-seven, shall be received from him by his complying with the section second of this act, not exceeding in amount five hundred dollars.
Sec. 2. The state treasurer shall require of all county treasurers, paying warrants under this act, to make an affidavit that such warrants were actually received by them for the purposes named in this act, prior to said fifteenth January, one thousand eight hundred and fiftyseven, said affidavits to be filed in the office of the state treasurer.
Act of April 24, 1858. Art. 530, Sec. 1. The sixth section of an act entitled an act concerning the receipts and expenditures of the state, approved February seventh, one thousand eight hundred and fiftyseven, is hereby repealed. Act of April 21, 1858, to Create a Board of Examiners, to define their Powers and Duties, and to impose certain
Duties on the Controller and Treasurer. Art. 531, Sec. 1. The persons who fill and discharge the duties of the office of governor of this state, secretary of state, and attorney-general, are hereby appointed and constituted a board of examiners, with the power and duties hereinafter specified.
Sec. 2. It shall be the duty of said board, as often as it may be deemed proper, to examine the books of the controller and the treasurer, the accounts and vouchers in their office, and to count the money in the treasury; and for the purpose of discharging the duties imposed on it by this act, the said board is authorized to demand, and the controller and treasurer are hereby required to furnish the said board, without delay, such information as it may demand, touching the books, papers, vouchers, or matters pertaining to, or cognizable in their offices, respectively; provided, that the counting of the moneys in the treasury shall take place at least once a month, without the said board giving the treasurer any previous notice of the hour or day of the said counting; and, provided further, that said board may, at any counting, place any sum in bags or boxes, and weigh each bag or box separately, and mark the same, with the weight thereon plainly specified, and place thereon a seal, to be kept by them; and shall, at subsequent countings, reweigh each bag or box separately; and if the weight shall correspond with the weight marked thereon, may estimate said sums as a part of the money counted by them, without making an actual count thereof.
Sec. 3. Said board shall, at least once in each month, file an affidavit in the office of the secretary of state, showing the actual amount of money in the treasury at their last counting prior thereto, and shall cause a copy of said affidavit to be published in one daily newspaper published at the capital.
Sec. 4. It shall be the duty of the controller and treasurer to permit the said board of examiners to examine the books and papers in their respective offices; and of the treasurer, to permit the moneys in the treasury to be counted whenever the said board may wish to make said examination or counting, without delaying said examination or counting, on any pretense whatever
Sec. 5.XThe controller shall be authorized to draw his warrants the treasurer for the salaries of officers, when appropriations are or shall have been made therefor by law; but, in all other cases, previous to drawing his warrants, in liquidation of any claim or demand whatever,
examiners; and whenever, hereafter, the controller shall, by law, be directed to draw his warrant upon the treasurer of state for any purpose whatever, said direction shall be construed to be subject to the provisions of this act, unless said direction be accompanied by a special provision exempting it from the operations of this act.
Sec. 6. Whenever the board shall have reason to believe, or shall be informed that the controller, with or without its approval, has drawn, or is about to draw, his warrant, without authority of law, or for a larger amount than the state actually owes, it shall be the duty of said board to notify the treasurer of state not to pay said warrant so drawn and registered, or to be drawn, and thereupon the treasurer shall be and hereby is prohibited from paying said warrant, whether already drawn, or when thereafter drawn, until he shall be otherwise directed by the legislature.
Sec. 7. Any violation of the foregoing provisions of this act, by the board of examiners, controller, or treasurer, shall be deemed a felony; and, upon conviction thereof in a court of competent jurisdiction, the party convicted shall be sentenced to imprisonment in the state prison for a term not exceeding three years, and to a fine of not less than five hundred dollars, nor more than twenty thousand dollars; and whenever any indictment shall be found, under this act, against either of said officers, every such officer shall be temporarily suspended from his said office until such indictment is tried and such officer acquitted; and said office may be temporarily filled by appointment by the governor; provided, that in case of indictment of the
governor, and his suspension from office, as one of the members of said board, as provided in this act, the powers and duties of his office shall, for the time being, devolve upon the lieutenant-governor; and any final conviction obtained under this act shall, ipso facto, vacate the office held by the party so convicted, which shall be filled in the manner provided for by law.
Sec. 8. It shall be the duty of said board of examiners to examine, and either approve or
Sec. 9.)Any person or persons who may have or claim any demand whatever against the Sto's state, may present the same to the board of examiners, in the form of an account or petition, P.230 shall prescribe by their rules, present his evidence to sustain said demand, and it shall be the duty of said board to indorse said demand, as required in section ten of this act. XC763
Sec. 10. YIf said board approve the demand mentioned in section nine, and an appropriation to meet the same shall have been made by law, then they shall indorse thereon, over their P296 signatures, "approved for the sum of dollars," and transmit the same to the office of the controller of state; or, if no appropriation shall have been made by law for the payment of said demand, then said board shall transmit the same to the legislature of this state, stating their approval of the same, and the reasons therefor; but if said board, or a majority thereof, disapprove said demand, they shall cause the same to be filed among the archives of said board, with a statement showing such disapproval, and the reasons therefor.
Sec. 11. Any person or persons, interested, who may feel aggrieved by the disapproval of a demand by said board, may appeal from its decision to the legislature of the state; such appeal shall be taken by filing with said board a notice thereof, and upon the receipt of such notice, said board shall transmit said demand, and all the papers accompanying the same, with a statement of the evidence taken before it, to the legislature. No demand, or claim of any nature whatsoever, shall be entertained by the legislature, unless recommended by the board of examiners, or upon appeal from the action of such board.
Sec. 12. The governor of the state (and the secretary of state, in his absence) shall act as chairman of the board of examiners, and as said chairman have power to issue subpenas and compel the attendance of witnesses before said board, in the same manner that any court in this state can compel the attendance of witnesses before it; and whenever, in the opinion of said board, the testimony of any witness against a demand pending before them is material, it shall be the duty of said chairman to cause the attendance of said witness before said board, to testify concerning said demand; and said board are hereby authorized to make such witness a reasonable allowance for such attendance, not exceeding the fees of witnesses in civil cases, which shall be paid from the contingent fund allowed said board; but in no instance shall an allowance be made in favor of a witness who testified in behalf of the claimant.
Sec. 13. That the said board shall have authority to establish rules and regulations for its government; and each member thereof is hereby authorized to administer an oath or affirmation to any person or persons concerning any matter before said board, or intended to be brought before it; and each member of said board is hereby authorized to take the deposition or depositions of any witness or witnesses, to be used before said board in any matter pending before it.
Sec. 14. That if any person shall knowingly and willfully swear falsely before said board, or any member thereof, in a matter pending before said board at the time of taking said oath, or in a matter to be submitted to said board, such person shall be deemed guilty of perjury, and on conviction thereof, shall be subjected to the same pains, penalties, and disabilities, which now are or shall be hereafter by law prescribed for willful and corrupt perjury.
Sec. 15. The said board shall hold sessions for the transaction of business, at least twice in each month, and shall cause a record of their proceedings to be kept; and any member thereof may cause his dissent to the action of the majority upon a matter brought before it, to be entered upon said record.
Sec. 16. The said board shall not hear or entertain the second time a demand against the state which it has once rejected or which has been rejected by the legislature, unless such reasons shall be presented to said board as by the rules of common law or chancery, in suits between individuals, would furnish sufficient ground for granting a new trial.
Sec. 17. That a majority of said board shall constitute a quorum, and may, as such, discharge any of the duties specified in this act. Said board may appoint a clerk, whose duty it shall be to keep a true and correct record of all the proceedings had before said board.
Sec. 18. That for the services herein specified, the person acting as governor, or filling that office, shall receive a salary of one thousand dollars per annum; the person filling the office of secretary of state, a salary of one thousand dollars per annum; and the person filling the office of attorney-general, a salary of fifteen hundred dollars per annum. The clerk of said board shall receive for his services the sum of twelve hundred dollars per annum.
[Sec. 19 simply appropriates money for salaries and expenses. Sec. 20 simply repeals conflicting acte.] Sec. 21. The contingent funds of the senate and assembly are exempt from the provisions of this act.-[A. S. Jan. 29, 1859.
JUDICIAL DECISIONS. 1. A warrant of the controller of state on the treasurer, in the absence of an exhausted specific appropriation, is void. Butler v. Bates, 7 Cal. 136.
2. A law requiring all persons holding warrants upon the treasury to present the same for registry before a certain day, or be forever barred from enforcing the payment thereof, is unconstitutional. Robinsou t. Magee, 9 Cal. 81.
Act of March 10, 1859, to aid in the erection of the “Washington Monument," in the District of Columbia.
Art. 532, Sec. 1. For the purpose of aiding in the erection of the "Washington Monument,” in the District of Columbia, the controller of state is hereby authorized and required to draw his warrant on the general fund for one thousand dollars, in favor of the governor of the state of California, in the month of June of each year, and the treasurer of state is hereby authorized and required to pay the same, and the governor shall transmit said amount to the treasurer of the “Washington Monument Association," or to the proper officer or officers, to be applied to the erection of said monument.
Sec. 2. The sum of one thousand dollars is hereby appropriated, out of any moneys in the general fund not otherwise appropriated, for the purposes of this act.
Sec. 3. The cost of exchange required to forward said amount shall be paid out of the fund for stationery, lights, fuel, etc., for the legislature, upon the order of the governor.
WATER COMMISSIONERS. Act of April 13, 1860, to create a Board of Water Commissioners in the County of Merced, and define their duties.
ART. 533, Sec. 1. The board of supervisors in the county of Merced are hereby constituted a board of water commissioners.
Sec. 2. The duties of the commissioners shall be: First, to regulate the water-ditches used for irrigating and milling purposes in said county ; Second, upon the petition of any person or persons interested, they shall lay out or cause to be laid out, by the appointment of an overseer, any ditch to be used for the purposes aforesaid, and where the water is to be used by more than one person to apportion the same according to the amount of labor or capital invested.
Sec. 3. The commissioners and overseers shall be allowed and receive four dollars per day for each and every day engaged in laying out any water-ditch in the county, which shall be paid by the party or parties for whose benefit the same is laid out.
Sec. 4. When water rises on land owned by any person, it shall not be subject to the provisions of this act; but in all cases after it has passed beyond the limits of said lands, it may be used as provided in this act.
Sec. 5. In all cases the commissioners shall have the right of way to lay out and cut ditches through their county.
Sec. 6. Any person using the water when it is not his right so to do, and when it belongs below him, and any person obstructing the water of any ditch, either by dam or otherwise, or who shall throw, or cause to be thrown, any filth into any such water-ditch, shall be deemed guilty of misdemeanor, and, upon conviction thereof, be fined in any sum not more than twenty dollars for the first offense, and fifty dollars for every subsequent offense of like nature, recoverable at the suit of the owner or owners of such ditch, before any justice of the peace of the township, to be appropriated to the payment of commissioners' and overseers' services, or repairing said ditch.
Sec. 7. In case any persons or person shall be damaged by the breaking of any ditch, the parties using such ditch shall be liable for all such damages.
Sec. 8. No persons or person shall direct the waters of any river, creek, or stream, from its natural channel, to the detriment of any person or persons using said waters below, on any such river, creek, or stream.
Sec. 9. Any person or persons, who, under this act, shall condnet water by ditch or otherwise across private land or lands, and such person or persons cannot agree with the owner of said lands as to the amount of damages to be paid him therefor, the said person or persons so conducting water shall petition the county court of the county in which the land may be situated, briefly setting forth the facts of such disagreement, and praying the court to appoint three commissioners to assess the damages arising from the taking of such right of way; and such court shall thereupon appoint three disinterested persons, who shall have power to proceed to such premises and to determine all questions of damages to such land arising from such taking—to take testimony and to award the amount of damages to the person or persons 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 affirmed 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, 5. 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 thousand 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 compensation 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.