STATEMENT-SPECIFICATION. The statement contained no specification of the particulars in which the evidence was insufficient, nor any specification of errors of law. The Court found in favor of defendants. Held, the judgment and order should be affirmed.—Crane vs. Gladding. READING SECTIONS OF THE CODE-PHONOGRAPHIC REPORTER-WRITTEN CHARGE. The bill of exceptions state that the Judge of the Court below read from the Penal Code certain sections, naming them by number. Held (Sharpstein, McKee and McKinstry, J. J., dissenting), that in such case there was no necessity of the phonographic reporter taking down the sections read; and such practice was not in violation of the rule requiring the charge of the Court, if not in writing, to be taken down by the reporter.-People vs. Mortier... 768 142 66 PLEADING. Before the aid of a Court of equity is sought to obtain relief from an excessive tax, the complainant should first pay what is conceded to be due, or what can be seen to be due on the face of the bill, or be shown by affidavits, whether conceded or not. It is not sufficient to allege readiness and willingness to pay what may be found to be due. If the proper officer refuses to receive a part of the tax, it must be tendered, and tendered without the condition annexed of a receipt in full for all the taxes assessed.-Huntington vs. Palmer.. FINDINGS. Action to recover damages, etc., for alleged diversion of water. Held, the findings of fact being indefinite, but it appearing therefrom that plaintiffs have a prior right to more water than the Court in its conclusion of law finds they are entitled to, or in its judgment awards to them, the cause must be remanded with directions to the Court below to make its findings of fact as to the relative rights of the parties more definite and clear; and that the conclusion of law and judgment be so framed as to correspond with the findings of fact.-Evans vs. Jacobs...1095 See ELECTION; CHARGE; ARREST OF JUDGMENT; EJECTMENT; INTERVENTION; STATUTE OF LIMITATIONS; MORTGAGE; HOMESTEAD; ACTION TO QUIET TITLE; PLEADING; COUNTER-CLAIM; APPEAL; SUPPLEMENTAL COMPLAINT; FINDING; PARTIES; VENUE; FORMER JUDGMENT. PRE-EMPTION - INTRUDER - SettlemeNT ON LANDS OF THE UNITED STATES. A person having all the qualifications of a pre-emptor cannot acquire a right under the laws of the United States to pre-empt where he has made an entry and settlement on land within the inclosure of and in the possession and occupation of another, without such other's consent or the consent of those h lding possession for him, and against his express prohibition, where such other person has held possession for years of the land and used the same for grazing, erected a dwellinghouse and other buildings thereon, and occupied it in the prosecution of dairying.-Mc Brown vs. Morris 708 REVISED STATUTES OF UNITED STATES-ACTS OF CONGRESS-LANDS. The provisions of the revised statutes of the United States are substantially the same in reference to the lands subject to pre-emption as the Acts of Congress in force prior to the adoption of such revised statutes.-Id. PRESIDENT OF UNITED STATES. The Act of Congress of March 3, 1807 (1 Lester's Land Laws, 28), merely invests the President of the United States with authority to act on behalf of the United States in removing intruders from the public lands, and does not enlarge the rights of one who intrudes upon the occupation of another.-Id. HOMESTEAD CASE FOLLOWED. An entry made by a person upon the possession and occupation of another with intent to acquire a homestead right under the laws of the United States, which he was allowed to enter and pay for at the Land Office, does not take his case out of the rules laid down in McBrown vs. Morris, 7247 (November 29, 1881), in respect to an intrusion by a pre-emptor upon the possession and occupation of another.-McBrown vs. Wilson.. 717 SECTION 2269 REVISED STATUTES UNITED STATES-DEATH OF PRE-EMPTOR WITHOUT HEIRS-ACTION BY ADMINISTRATOR-PATENT-HEIRS. Bill in equity brought by plaintiff, as administrator, to compel defendant to surrender a United States land patent alleged to have been acquired and held in trust for the plaintiff. Held, conceding that plaintiff's intestate might have maintained the action, the plaintiff as administrator, under Section 2269 of the revised statutes of the United States, could not do so without alleging the existence of an heir of the deceased. Were it not 495 for said section, the pre-emption claim would not survive the pre- OF LIFE OF FIRST WIFE. In a bigamy case there is no presumption against See PRACTICE; Montgomery Avenue; Criminal LAW; BIGAMY. PROBATE-See FRAUD. PROBATE COURT. As to jurisdiction in setting apart homestead, see Es- See CHARITIES. PROCESS-See ORDER OF ARREST; SERVICE. 248 386 686 267 against whom a writ of prohibition may issue, includes a Judge of the The omissions of a magistrate, on a preliminary examination, to examine NOTICE TO LOWER COURT. Prohibition will not issue from the Supreme PROOF OF PAYMENT OF NOTE.-The fact of payment of the note was prov- 175 .1015 597 129 REVIVAL OF NOTE-ENDORSEMENT. A note once paid cannot be subse- See PARTIES; ASSIGNMENT. PROSTITUTION-See CRIMINAL LAW. PROVISO. A proviso is something engrafted upon a preceding enactment PUBLIC LANDS-See WATER RIGHTS. PUBLICATION. There can be no publication for four weeks next preceding PURCHASER PENDENTE LITE-FRAUD-JUDGMENT. A purchaser The fraud necessary to set aside a judgment must be actual, not construc- .1039 PURCHASER FOR VALUE-CONTRACTS TO PURCHASE LANDS-MORT- RAILROADS-See NEGLIGENCE. RAILROAD PROPERTY--See STATE BOARD OF EQUALIZATION. READING FROM CODE-See CRIMINAL LAW. REASONABLE DOUBT-HYPOTHESIS. In a criminal case it devolves upon See CRIMINAL LAW. REASONABLE TIME-See CONTRACT. RECLAMATION DISTRICT-SWAMP LANDS-FINAL JUDGMENT — AP- 229 3 940 360 253 133 lands from a district, or consolidating districts, which order or judgment" of the Board was, until the passage of the Act of April 16th, final and unappealable. If the members of the Board exceeded their powers, so far as they might be held to be judicial, their action might be annulled by certiorari; but there was no appeal. When the matter determined by the Board is "tried anew" in the Superior Court, the judgment of that Court is not put by the language of the statute in opposition to any previous decretal order or interlocutory decree in the same proceeding. But one judgment is spoken of, and in the sentence in which the word "final" is used, it can mean nothing, except that the judgment shall be followed by no other proceedings determinative of the rights of the parties in the same or any other Court.-Bixler's Appeal.. 805 ASSESSMENT FOR RECLAMATION PURPOSES. In an action brought to enforce an alleged assessment for reclamation purposes, made under and pursuant to the provisions of the Political Code, it appearing that the plaintiff was not originally formed under the provisions of that Code, nor was it re-organized thereunder by virtue of Section 3478. Held, the provisions of the Code had no application to the plaintiff, and the assessment based upon them was unauthorized and void.-Reclamation District vs. Kennedy.... SETTING ASIDE ASSESSMENT FOR RECLAMATION PURPOSES BY BOARD OF SUPERVISORS. The Board of Supervisors has power to set aside a former order directing an assessment upon a reclamation district, if such order had been made before the employment of an engineer to survey, plan, locate, or estimate the cost of the work necessary for reclamation, and before any estimate had been made by the proper person.-Bixler vs. Supervisors.... RECEIVER-See INSOLVENCY; ATTACHMENT; RECORD; JUDGMENT ROLL.. RECORD COPY OF DEED-See EVIDENCE. RECOUPMENT-See Collins vs. Townsend.... REDUNDANT MATTER-See PLEADING. REFORMATION OF WRITTEN INSTRUMENT. To authorize a Court of equity to reform a written instrument on the ground of mistake, there must have been a mutual mistake of the parties as to the contents of the instrument to be reformed, or mistake on one part and fraud upon the other. De Jarnatt vs. Cooper.... PROOF OF MUTUAL MISTAKE-PRESUMPTION. An executed instrument is deemed to express the mutual intention of the parties; and to have it reformed, this presumption must be overcome by clear and unequivocal proof of a mutual mistake-that is, a mistake reciprocal and common to all the parties.-Id. See MISTAKE. REMITTITUR-LACHES. Laches of ten years unexplained, in not moving to recall a remittitur, is sufficient ground for denial of a motion to recall it. San Francisco vs. Calderwood... REMITTING DAMAGES-See PRACTICE. REMONSTRANCE - See STREET ASSESSMENT. REPAIRS-See LANDLORD AND TENANT. REPLEVIN JUSTIFICATION BY SHERIFF. In an action to recover possession of personal property, a justification by defendant that he holds the property under writ of attachment, judgment and execution against plaintiff's vendor is sufficient. Stephens vs. Hallstead. See ATTACHMENT. REPORTER-See CHARGE. REPORTER'S FEES-See COSTS. REPORTER'S NOTES-See EVIDENCE. RES GESTAE See CRIMINAL LAW. RESCISSION-CONTRACT OF SALE. Plaintiff, successor to one H., sued defendant in ejectment. Defendant had entered into possession under a contract of sale made with H. while he (H.) was the owner of the prem 262 107 367 87 197 35 ises. The testimony showed a rescission of the contract between defendant and H. prior to the acquisition of title by plaintiff.-Gethin vs. Walker.. See Collins vs. Townsend, 564; Sale RESIDENCE-See ELECTION. RESISTING OFFICER-See CRIMINAL LAW. RETROACTIVE LEGISLATION-See ADVERSE POSSESSION. RETURN-See HABEAS CORPUS. REVERIFICATION OF ANSWER-See PRACTICE. REVIEW-See WRIT OF REVIEW. RIGHT OF WAY. A right of way does not originate in mere convenience. It must spring from an express grant, or from an implied reservation, or from a user for a length of time sufficient to create a prescription, or a bar under the statute of limitations, either of which is presumptive evidence of a grant.-Carey vs. Rae et al... The impassability of a road gives to a party no right to an easement over adjoining land.-Id. .1050 RIPARIAN OWNERS-RIPARIAN RIGHTS. The owners of lands upon a creek appropriated the waters thereof for irrigation. The waters of this creek came, by percolation through a limestone formation, from certain springs. Subsequently the owners of the land on which were these springs, diverted these waters to irrigate the land. Held, that the waters of the springs were a part of the creek.-Strait vs. Brown DOCTRINE OF APPROPRIATION. The doctrine that prior appropriation gives the better right to running waters upon the public lands, to the extent of the appropriation, is established in the Pacific States.-Id. APPROPRIATION OF WATER. The first appropriator of water for beneficial uses, upon the public lands of the State or of the United States, acquires a vested right therein, whether such appropriation be for agricultural or other purposes.-Lux vs. Haggin... ACT OF 1866. The Act of Congress of 1866 merely recognizes and sanctions pre-existing rights.—Id. THE CIVIL CODE preserves the system of the acquisition of water rights by appropriation.-Id. PRIOR APPROPRIATION. The doctrine of prior appropriation has been adopted by the State and Federal Courts, and is applicable to both the State and Federal domain. -Id. ID. An appropriation of water is valid as against the claims of a riparian proprietor who acquires title from the Government (State or Federal) subsequent to such appropriation -Id. Semble. Such appropriation would be good even as against a riparian owner acquiring title prior to the appropriation, provided such owner was not himself making a beneficial use of the water.-Id. IRRIGATION. The use of water for irrigation is a natural want in this State, and defendant, as a riparian proprietor and licensee of the Government, has a right to make a reasonable use of the water for such purpose.-Id. Riparian owners are such as own upon the banks of a stream; ownership of the bed of a stream does not carry with it riparian rights.-Id. A claim to riparian rights by the owners of a stream formed by the overflow of a lake is too remote to entitle them to an injunction against persons diverting the water of a river emptying into such lake.--Ïd. DAMAGES INSTRUCTIONS-IRRIGATION-GROWING CROP. Action to recover damages for diverting water from Mormon Slough, a natural watercourse, by which plaintiffs were prevented from irrigating their growing crops of wheat and barlev in 1877, and in consequence of which they suffered loss and damage. The measure of damages in this case is the amount of injury to the crops described in the complaint by the act of the defendants in diverting the natural flow of that water, if they did divert it. It is for you, after weighing and deliberately considering all the evidence in this case, to say what damages the plaintiff suffered. If you find for the plaintiffs, your verdict will be: "We, the jury, find for the plaintiffs -in such damages, according to the evidence, as you think the plaintiffs 93 977 455 |