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which is as follows : The court should bare
sustained the objection ol the plaintiff tint
the court was not legally in session, giving
a a reason that as the above cited exception
is first in pnictical orJer and if allowed must
impel this court to reverse the judgment in
thu case, it is here considered firat. The
Legislature of this Territory has from its or
igin assumed that it is authorized to iix the
term of the supreme and district courts.
or by representation. Tho declarations of
the crons present, whether confined to the
parties themselves or communicated to the
defendant, could not effect his legal rights,
unless it should appear that he in Mine way
accepted or assented to them. It does not
appear that bis acceptance or as-sent was
shown or proposed to lie shown. This excep
tion is therelore overruled.
The third exception is: The court erred
this subject with Iirown himself or with
ISrown'a grantees, would naturally refer to
Brown's promise, with stranger to Dexrsllo's
deed, and in stating tbc cost of his ranch
and water-ngnt to aiy body, bo might allege
the SHOO mentioned in the deed, by whu:h
he and bis must ex
y of no breac
and incur no forfeit
appears in the cbai
the exception mus
ict to hold them and be
of legal or moral truth
ire or hazard. ro error
;e thus excepte.l to and
be overruled.
Till the present case, no conflict has arisen on , n refusing to give the third instruction asked
this subject between this court and the leg- ; fur by the plaintiff' counsel that defendant
islature, because tho practice of the court having asserted a right under the deed of.
has been to adopt and ratify the action or Degrallo U bound by it, and that tbc statute
the legislature in regard to the terms of the 0f limitations does not begin to run until he
district court. Tho opinion then quotes the claims under the right now set up by him."
act of the legislature fixing the terms of the it joes not clearly appear cither from the
district courts and proceeds as follows: Tbis record or argument uiwn it, what is meant
distribution of tho terms of the district j by this exception. To be at all available for
courts wat undoubtedly a defective cxecu- the plaintiffr, it must lw found to refer to
tion of the orderof Congress, because it con- j 80me portion of the evidence in the cate.
tained no limitations to thu ecssiou of the !xhe only portion of tho evidence to which
court. It was ju such legislation as ena- this exception appears to be responsive, is
bled a Mormon district judge to sit 120 lav, defendant's allegation that "early in 18G7,
not for the transaction or business, but to Hrown ollered him a ranch in Chino valley as
charge the federal government an enormous ' an inducement for him to bring his family
bill of expenses an abuse or rather one of land settle there." Tbis teems to be that
the abuses which induced thu Act of Con- wukh this exceptian describes as "the rigbt
gress or 1856, which will be cited hereafter. nuW Mi UJI by i,jul" The exception assumes
The ratifving order of the supreme court i that tbis is in some wav fatallv conflictinz
supplied tbis defect by imposing necessary yvith the dellndout' having averted a right
iMKiintioni It u-.-ia fiiimJ ImWtfvrr that tho ,l..,l iP TV...-. II,. tt.l. .....-.1
interval, only two weeks between the Vuma the tenancy iu common which is asserted by
and Yavapai ternH, was absolutely too brief the plaintilf.' first exception and formed an
to enable tho United State-, d.striet attorney ,era tbo ca which not the statute of litn-
to transact tho United States business at one itatiorii in active operation. Such, however,
of these courts and reach the other in time not the legal eifect of this testimony,
for it. Accordingly the legislature was in- There is really no conflict in the defendant's
vited to join the judges of the supreme court 'claiming at one lime under Degrallo'a deed
in amending this order, not because these 'anj at another under Iirown'spromc. They
judges doubted their power to alone make aro uarta of one complex transaction iu
the order, but to avoid every appearance of which the deed appears as the fulfillment of
disrespect towaras tue legislature, ana an tle promise previously wade. The defend
possibility of exception such as has been jttt might at one time assert that Brown's
taken in the present case. The legislature i promise was the consideration which actuu
refused to act and the judges of the supreme Lied him: at another the S500 mentioned in
court, not doubting their authority, made and DeeralloV deed; at another the deed itself:
promuigateu tue louowiug oruer. na at other times anj two ol these; or, all
The opinion then gives the order in full, three of them togetlur; und yet he would
and follows by explaining the necessity for j forfeit no legal liht and incur no legal haz
such order and then continues: The author- rd. The defendaut in his conversations on
ity of this court to make the order in ques
tion is derived from the Act of Congress of
August 1G, I860, which is us follows: "Sec
tion 5. That the judges of the supreme court
in each of the Territories, or a majority or
them shall when assembled in their respect
ive scats of government, fix and appoint the
several times and places of holding the ter
cral.courts )n tbelr respective district- and
limit the duration of the term's thereof; pro
vided that the said courts shall not be held
at more than three places in any Territory ;
and provided further that tho judge or judges
holding such courts, shall adjourn the same
without day at any time betore the expira
tion of such terms, whenever in his or their
opinion, tbe further continuance thereof is
not necessary. Then follows a history of
thu act, with reference to opinions ot other
courts relative to the subject and concludes
bv savlntr: Tbe supreme judges of this Ter
ritory therefore had the power to appoint the
regular terms ot the district courts lor cacu
oi tbe several entire districts, and tbis excep
tion to tbe contrary is overruled.
Tho error first assigned on tho brief of
annellants' counsel, and the one next to be
considered, is as follows: The court erred
in charging the jury that if defendant bad
been in possession of the said property five
years plaintifls must fail in this action. To
this tbc appellants' counsel adds: "Tbo
. uwuera of tho prorwrtv In nuutisn were ten
ants in common of thu ditch and water right
the possession of one being the possession
of all." The latter statement is certainly
true and it is an abandonment of tbis excep
tion. This unity of potscssion which makes
tho defendant a tenant in common with the
plaintiffs, protects him from all disturbance
by them or either or them, lie can call up
on them to account for any invasion of his
rights, and his unity of possession can only
be dissolved by proceedings in partition, or
by amicable agreement. If this is not so,
then from all that appears in tbo case, thu
five years and some month which elapsed
between tho defendant's entry upon the en
joyment of tho water right in March, 1807,
and the institution of this suit in August,
1872, must bar tbo plaintiffs' recovery. Com
piled Laws, page 331, Section 3. From nil
that appear in tbe present case, tbe defend
ant is entitled to tho protection which is due
to a tenant in common or to tho statute of
. limitations, and in either event this excep
tion must be and is overruled.
The next exception is: Tbe court in re
jecting tho evidence offered by plaintiffs of a
mectiri ' held bv Itaotrbart. Brown and Pos-
tlc, to which ih two former relused to let
dercadaht bflVij stay ot tfia water claimed by
them, thai Voiila said 1Q would let bim have
of bis. and iKti ifccrO vrSi to other under
standing between, ibfepfirtiM. No legal right
. of tbo plaintiff wis Ijifflujced by the rejec
tion ot this evicteno. 171a oeionuant, was
not present at tbhj suiting either personally
would fall. In eases such as this, If they actually
do occur. It Is the highest duty of the jury to dis
agree. To enable a jury therefore to Unci a ver
dict ct all In any case, In which there Is a conflict
or testimony, there must In) a preKndcrance of
evidence In lavor of one tide, and the jury mut
llnj It as a condition precedent to the reudillon
or their tcrdtcl. That the Judge thus staled a
truism to the jury on the trial of this ciaic, Is no
mailer of successful exception, and this exception
I accordingly overruled.
The exceptions of the appellants thus all f ill
and Iheru l noihlug else Iu the record to show
why the Judgment Iu this case should uot It) af
firmed. This conclusion, It Is suhiultlrd, If Micro
Here anv doubt of It legality, could Ik sustained
ou the evidence which the case presents or a mrol
license to tho defendant or the water-right In con
troversy. And the same concluilou U reached by
another most simple process of Investigation.
was round as a presumption or act In tlie state
ment or this ease that tbe defendant was located
higher up the ditch and nearer the source ol wa
ter supply than the plaintiffs : and also ns another
presumption or fact that his location was there
lore older than theirs. Hy a very Mmple deduc
tion, the legal conclusion therefore Is ''prior In
teinporc-potlor In jure," Iu the absence of all sul-
llclenl evidence to tbe contrary, tbat tbe delrc-
dnt right Is better than that of the plaintiffs.
Tho Judgment of th court IhsIow In the present
case U therelore hereby atnrtucd.
New HoMesTcan Kill. The House Commit
tee ou public lands at Washington, have reported
a bill tor the purpose of securing horuestrudt lo
actual settlers ou public lands. It repeals thu
pre-etsrptkm laws, and provides that any lwrson
above the age ol twenty-one, who Is a citizen of
the United Slates, or who may hare declared his
Intentions to become such, shall Iks entitled to en
ter, by purchase with ca.ti, any tract of hud not
exceeding forty acres, as a site for mechanical.
commercial or manufacturing purposes, upon
proof ratisfictory to the Commissioners of thu
(ieneral Land ORlce tint he Is In actual possession
of such premises, and that no valid adierte claim
existed at the dale or hit occupancy, and that he
has occupied and held possession of the tame for
such purpose fur his own use and benefit for not
less thau one car. l'rovlded, that notice of his
Intention to claim said tract shall be tiled with
the Iteglstcr within two mouths Irotn the date of
actual potscssion, and thai the payment herein re
quired shall be made within eighteen months or
said flllii!,-. Ail lands within the lateral limits of
auy railroad grant, the title to which shall remain
in tlie United Males, whether an odd or eveu sec
tion, shall, upon becoming subject to salu under
the provisions or this act, be held at the double
minimum price or KM au acre, unless otherwise
pcclllcnily provided by law. After the first day
oi ocpiemoer, next. It Is Intended that this Act
shall become operative.
The fourth exception Is as follons: The court
erred in its charge to the jury, that plalutltls were
estopped by the declaration ol ilrowu." The ex
ccntlon does not fully slate the cbarire of the
judge upou the trial of this case nor the eldeuee
to which ltrelers. Jnu c Large, was thus: Again,
If Drown did represent to defendant while he,
Iirown. was In possession of the nrooertv now
claimed by the plalntllT., that one-fourth of the
water flowing in tue ditch was the property ol
Degrallo, aud used the inducement alleged to In
duce the defendaut to go there mid eetlle, and
defendant relying On his reprcteiiutlau did so
uo to thai valley and enter uion the tiostessloii
of the ranch and water-right under and by Irtue
of any alleged purchase or agrectueut with Urowu
or Iirown and l'ostle from or with Degrallo,
these plaintiffs aru estopped, as Urowu blmsell
would be if he were the plalntltr Iu this action,
from denying such right of defendant to oue-
fourlli Interest In the water right forever alter,
and this If Degrallo never had any right or Inter
est In the property, whatever, ur If lucre was no
such man In being, the whole of this exception
must bu taken together with the evldeucu to
whlvu II fuJcl, in tlibjliiig II legui licet. On
recurring to lue icttimooy, we find that the de.
ienaani iuok possession oi ui ruticu and one
fourth or the water now In coulruvcrsy Iu March,
lttCT, aud hat ever since used aud enjoyed both ;
aud thai the deed of Degrallo to defendant was re
corded April u, imh. urowu's deed to Beimel-
dcr is oatea rtovciuucr, lexw. Belmelder's deed
to uampucii, oue oi me piniuiiu, and Buutim, li
dated August, lbCS; and Campbell's deed to Ua
ker, tue oiutr piamim, is dated March, 1873. The
only prlucliilu upon which Hrown's grantees, the
present plaintiffs, can deny the bludlug cUect up
on them of lirown's declarations eoncerulu" the
water to iuu ucicnoui, would bo that they had
uo notice or them. In respect to this. id..
sumption oi nw is mat wojupuull aud Hiker ex.
ercisru uiumarv uiiHgcnce lu aiccrlalulii" the
conditions and relutlous or their ranch, nt the
time they took possession In November, lbU7. aud
lu March. 18VJ. The law reunlre. ol 11 em
nary dllllgeiice In nil such turners at l Lis water
couiroyerty, In rhlch others are concerned. The
iw mi. uaiuiTSiiKcirom me defendant hit ditch,
water and give It to the plalntitrs lu pity or n .
provul ol their tell-lrupoied Iguorsnei at the lime
they pureliat.d the ranch. Tho opinion unUer
proccedt to examine th evidence on tbii ' Z in
and concludes: Ir this court had suy douk of
the conclusion above stated, the defentf rich!
could bo maintained on the ground of paid Hcente
overS.6' Ter' ""J ,UU l''on must be
The fifth and h,i exception It as follows The
court errvd lu Iu charge to the Jury lhat there
?WmifflatoSdw f vMeln lavor of
piainims to entitle them to recover " Tim
osl io thus excepted lo would teem soaxloS
" lo defy either question or discussion 1 I U,
If. ca1 olienc-c thould be VqnM u on side
Sh t li liiV1' l,ow M JV "?d I . ver"
acrec to dlM;ree lu tucb a case, and thuithe trUI
How to Treat Himins The lew thatsim.
pic cuts, bruisei and burns are meddled with.
the better. Iftbercre lcent clean and ix-
cluded from the air, nature will tak cure of
the healing proce. The salves and lotions
to commonly uted aro generally irritating
raincriuan Dcnriiciai, ana Hinder rather than
hasten the cure. For cuts, a little court
plaster to keep tbc edges of the skin together;
for brulseH, wet cloths ; for bums, a cover-
ing oi ury wiiesien Hour, are usually all the
treatment, and tho very Iwst tbat can bo
ued. If, from au unhealthy state of tho
body or from external irritation, inflamation
is produced, tomething more may be requir
ed, the remedy varying with the tpocial case.
THE ARIZONA MINER,
Published Daily and Weekly,
AT
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