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SUPREME COURT DECISIONS.
[Filed February 13,1891.
Appeal frpm Superior Court Santa Bar
bara—R. M. Dilhnd. Judge.
* or appellant—Cope <fc Boyce.
1- or respondents—B. F. Thomas, A. E.
Putnam, \\\ P. Butcher.
Booth, et als., Respondents,)
vs. V No. 13,2*37
1 Endola et als., Appellants. J
BY THE COURT.
This is an action brought by plaintiffs
having several liens of mechanics and
material men against property owned by
Pendola, deceased, in his life-time.
The findings show that Pendola entered
into a written agreement with one Ham
ilton on March 29, 1897, for tho construc
tion of the Western Hotel in the city of'
Bants. Barbara, and on tho 15th of June
Mitered into another contract with, said
Hamilton to build a cottage near said
hotel and on the same lot. Neither of these
contracts was recorded. Belt <fc Co. fur
nished materials for both buildings, for
which Hamilton agreed to pay a reasona
ble price. The court finds that the rea
sonable value; of the materials furnished
by them was |H8 86. On May 2, 1887,
Hamilton entered into an agreement with
Backus & Heyl, by the terms of which
the latter were to paint the hotel for the
sum of §.i(>">, and the cottage for the sum
ot $Vir>. The court finds that of these
sums *131 71 remain unpaid. Lightner <te
Buckingham furnished materials for and
performed certain work on the cottage,
for which Hamilton was to pay the sum
of 5335, and performed certain work on
and furnished materials for the hotel, for
which they were to receive the sum of
8075, of which the sum of &,& 3Z> remains
due and unpaid.
1. The claims of lien filed by. Backus &
Heyl and Lightner A Buckingham seg
regate and specify the amounts which
they were to bo paid on each building,
and .suite the total of the amounts paid to
them and the balance due on both build
ings. It is not stated, either in tho com
plaint or in tho findings, how much re
main due on each of tho buildings, and
the question is presented whether a joint
lien can be filed against two buildings |
Where they are separate structures which !
have been erected at different times, and
under different contracts between the
owner and the original contractor. It
Beema to be conceded that a- joint lien
may be filedagainsttwo buildings erected
at the same time and under the same eon
iiv.i.t. We think there can be no doubt
that such is the case; and whatever may
be the rights of an original contractor hav
ing constructed two separate buildings I
under two separate and valid contracts, '
we think that In the case at bar the only
effect of the failure to state how much la
bor and material was furnished one build
ing und how much the other, is to post
pone the liens of those claimants and
give precedence to the liens of others.
2. The complaint alleges that Hamilton
ngreed to pay Backus iv Heyl the sums of
8363 and Sl-Jo, above referred to, and that
lie agreed to pay Buckingham A; Light
ner tho sum offw7s for work done on and
material furnished for the.hotel and9B3s
on account of the cottage, but it is n<>
■wliere alleged, nor does the court find
what was toe value of any of the materi
als furnished or any of the work per
formed. Such allegations and findings
were necessary, and the judgment cannot
be .supported without them. The con
tract between the owner and Hamilton
was never filed for record, It was void,
and while it is doubtless true that the
contract price agreed upon between Ham
ilton, the agent ofthe owner, and the nw
terial men and laborers, is prima fade
evidence ofthe value of tho materials fur
nished and labor performed, and would
support a finding of value, we think that
tin allegation and a finding on the subject
are esst i;ii::l to support a judgment in ac
tions of this character.
All other points made by appellant and
worthy of consideration were noticed by
Mr. Justice McFarland in the opinion
filed in department (23 Pac. Rep. 200),
and we are satisfied with the conclusions
Judgment as to plaintiffs Buckingham
and Heyl is reversed, and the cause is re
manded fora new trial, with permission
jo amend their pleadings as they may be
advised. In all other respects the judg
ment is affirmed.
[Filed February 12, 1891.]
Appeal from Superior Court of Merced
County. Charles H. Marks, .Judge,
For appellants, Edward P. Cole and
For respondents, J. K. Law.
WISS XT AL.,
vs. No. 13,071.
Williams kt al.,
lIV THE COURT.
This was a suit for the foreclosure of a
mortgage. The trial court gave judg
ment for the defendants, and the plaint
This is the second time the case has
come before the appellate court. The
former judgment, which was upon de
murrer, wits reversed upon the ground j
'.hat the complaint was not subject to the j
objections taken by the demurrer; and
the court held, among other things, that
lh>' allowance of a claim by an ad
ministrator, and its approval by tho
Judge, stopped the running of the statute
of limitations. (See. 72 Cal. 544.) As a
matter of course, nothing that was then
decided is open to question now.
The facts material to the present appeal j
are as follows: "The mortgage sought to j
be foreclosed was made in 1^77 by John
Cumuli and Sarah, his wife, to secure the j
payment of a note made by the former, j
Alter tho execution of the note and mort
gage they declared a homestead upon tho
property, and subsequently the husband
died. Leaving an estate of less than $10,000.
On the mih of July, ISSO, letters of ad
ministration were issued to the wife, and
in accordance with Section 1491 of the
Code of Civil Procedure, she gave notice
to creditors to present their claims with
in t'.'iir months from the first publication
of the notice. The first publication was
on July L' 4. IM>. but there was no order
for publication until August 2. The
findings show a sufficient publication
of the notice, but the evidence
<lcos not, as will be explained be
low. On November 27th s decree of
doe notice to creditors waa made, on tho
20th, of tho following December, the
plaintiffs presented Uair claim, and it
was allowed by the administratrix as pre
sented, and approved by the Judge and
til, :mi the next day. On the 27th of the
same month an order was made that the
homestead be set apart to the widow; and
:i little more than a year afterwards she
died. Letters of administration upon her
estate were issued to the defendant, Halli
nan, and tetters upon her husband's es
tate were Issued to the defendant Williams.
The complaint states that the plaintills
'•expressly waive any and all recourse
upon said note and mortgage against any
property of the estate of said John Con
nell, other than the land above described
as included in said mortgage."
It does not appear what, if any, interest
the wife had in the property at the time
the mortgage was made; and nothing is
said cither in the pleadings, findings or
evidence, as to the presentation of a claim
to the wife's administrator. The counsel
■ to have assumed that it was not
necessary to present sijcii a claim, and fol
lowing their lead we have confined our
examination to the husband's c.suite.
1. Inasmuch as a homestead had been
declared ujion the property ii was neces
sary to present a claim arainnt the hus
band's estate, not withstanding the waiver
contained in the complaint. (Camp vs.
<irider, 02 Cal. 20; BolHoger vs. Slan
ning, 79 CaL 7; Mechanic's Building
Assn. vs. King. 8:1 Cal. MO.) As has
been stated, tiie claim was presented and
allowed by the administratrix, and ap
proved by the Judge. But the respon
dents contend that such presentment and
allowance was after the time prescribed
fey law and lor that reason, of no etlecU
'We do not agreo with respondents on
♦Vri<s T>oint. 'l^ho first publication was
made on iv& -4-18*« but no wruer tV)r
Dublicatioa was made until August 2d.
&ow we do not think that a publication
in advance of the order o! court was of
anvValidity. The s:atuto provides that
?hJnotice '-must be published «, often a,
the Judge or court shall but uot less
than oiice a week for four weeks." (C. C.
P See 14B0.) The legal period of pubH-
cation is to be fixed by the Judge. Until
ho acts it cannot be known whether the
periodof publication, will exceed the stat
utory minimum or not. Without an or
der therefor there can be no legal period
of publication, and consequently no au
thority for publishing. Now, inasmuch
as the paper was a weekly paper, and the
first publication was on July 24th, there
must have been two publications before
the order was made, viz: One on
July 24in and one on July 31st;
and under the view we have taken I
these two publications were of no effect.
Notwithstanding this, however, if the
affidavit were the ouly evidence on the
subject, a sufficient publication would be
shown: for it states that notice was pub
lished ''once every week from the 24th
day of July, 1880, to and until the 28th of
August, 1880, both day* inclusive," which
would give four publications after the
order was made, viz.: August 7th, 14th,
21st and 2Sth. But the affidavit is not the
only evidence on the subject. The liles
of the newspaper itself were introduced, I
and they showed that the notice was not
published on August 28th. This contra
dicted the affidavit. Now. while the
afßda\ it was madoevidenco ofthe statute,
it is prima fticic evidence only. (C. C. P.,
Sec. 2011). And the newspaper itself is
certainly more satisfactory evidence of
its contents than any affidavit would be,
and we do not regard the decree, estab
lishing- duo notice to creditors, as con
clusive. It results that there were only
three publications after the order for pub
lication was made, and this is below the
statutory minimum. The presentation
and allowance of the claim were therefore
2. The court found that all that was duo
upon the claim had been paid except §8(51;
ami the appellants contend that this find
ing is not sustained by the evidence, and
that the allowed claim could not be im
peached by evidence that it had been paid
previous to itsallowain-c.
There is evidence sufficient to sustain
this finding ofthe eoaxL and it wrs com
petent in this case, for the son and hc-ir of
the deceased mortgagor to show either
that the debt to secure which the
mortgage was given had been paid, or
that payments thereon had been made,
and not credited^ The allowance of the
claim by the administratrix, and its ap
proval as allowed by the Judge of the
court in whi>h the estate of tho deceased
mortgagor is being administered, are not
conclusive upon the heir.
Such action would not of itself be con
clusive, if the administratrix or plaintiffs !
were proceeding in the. Superior Court to
obtain a decree in the probate proceeding
directing that such allowed claim bo |
paid, and no greater effect can be given
to it in this actiou. The plaint
iffs cannot by resorting to this action de
prive the heir of the right given him by
Section ICttii of the Code of Civil Proced
ure to show that their claim was im
properly allowed in the administration
v. The cause of action is not barred by
the statute of limitations. As we have
stated, it docs not appear what, if any, in
terest the wife had in the property at the
time the mortgage was made, and a-s no
claim was presented against her estate, if
she had any separate interest, it could
not be reached by the case as it is pre
sonte-d. And so lar as her lights as suc
cessor in interest of her husband are con
cerned, it was held upon the former ap
peal that the allowance of the* claim
stopped the running ofthe statute of lim
4. Appellants ask tbatnnal judgment I
in their favor \>a directed. But it is the |
settled rule here that the appellate court
cannot direct final judgment upon evi
dence. The case must go back to the
trial court to have the tacts established.
Judgment and order reversed.
[Filed Febnrry 14,1891.]
Appeal from Superior Court, Los An
geles County—A. W. Hntton, Judge.
For appellant, Houghton, Silent and
For respondent, Bicknell «fc White,
Chapman & Hendricks, Cross &. Denson,
ALiiAMitRA Addition Wa-|
tke Co., Respondent, I Xo# 13>126 .
E. \j. Maberby, Appellant, j
There is in the County of Los Angeles
a natural stream issuing out of the Canada
del Molino, and called Mill Creek, which I
Hows southward from the mouth of the
rwnada towards the town of Alham
bra. In the year IWX), the hind embrac
ing the source of Mill Creek, and extend
ing to and including the mouth of the
cainida, belonged to li. 1). Wilson. South ■
of and adjoining the land of Wilson, and I
including the lower course of Mill Creek,
was a tract of Government land, embrac
ing 154 acres, occupied by K. .1. C. Kewen. j
Mill Creek flowed across this tract and
upon other vacant land of the United
Suites. In its ordinary stages, and in its
natural condition, the stream flowed but
a short distance below the land occupied
by Kewen. In order to irrigate higher
portions of his land and get a head for
conducting water to his house under i
pressure, it was necessary for Kewen to di- !
vert water from thestream on the lands of
Wilson, and it was also convenient for
Wilson to conduct a portion, at least, of
the water used by him in irrigation across
j the lands occupied by ivewon. Under
i these circumstances, W^ilson and wife on
the one side, and Kewon and wifo on the
other, centered into the following contract:
"This indenture, made this seventh day
j of May, A. 1). I860; between Benjamin D.
! Wilson and Margaret, his wite, of the
j first part, and Edward J. C. Keweu and
! Fannie, his wife, of the second part.
j Whereas the said Benjamin p. Wilson is
I the owner of a certain tract of land called |
the 'Silicon de San PasqnaL' situate in j
the County of Los Angeles, the bonndar- |
[ ies of which are set out and described and
1 .-ire known to the parties hereto; and
: whereasthere is a certain stream of water,
; which kikes its rise upon said tract ofland '
1 and flows through a glen or canad"., called i
j Canada del Molino, or Mill Stream, which
i gien is the glen whichisin front of the Old i
! Mill formerly possessed by tlioMission of \
■Situ Gabriel, and being upon the banks'
i of a certain fresh-water hike called Lako j
i Vineyard, which stream after passing j
through the said glen flows over the
boundary Hue of the said tract of land
called Rincon de San Pasqual, and on
and upon the lands outside thereof; and
| whereas the said parties of the second
part possess certain lands outside of and
bounding on said boundary lines, upon
which they :ire desirous of bringing the
snid water flowing in said Mill Stream,
I to which the >aid Benjamin D. Wilson is
j willing to consent in the manner and
j mode and for the considerations herein
"Now, therefore, this indenture wit
nesscth that the partias of the first part
for atid in consideration ofthe grants and ,
privileges to said Wilson hereinafter ]
made, :ind ofthe free, effective nud nndis- |
tnrbeu enjoyment thereof have granted, |
released, remised and conveyed, and by
these presents do grant, release, remise
j and convey to the parties of the second
i part the right of entry for themselves and
servants in, over and upon those certain
Lands, being in the county of Los An
geles and in tli.'tract of land called Kin
coti de San Pasqiutl, which said tract of
! land has been finally surveyed by the '
United States Surveyor-General, which
Bald certain lands are those lying within j
and on the western side of the glen or
Canada, called the Canada del Molino. or
Mill Stream, the mouth Whereoi is to the '
i northward ofthe Old Mill formerly occu
j pied by the Mission of San Gabriel, near
; the lake now called Lake Vineyard; and
I after entry thereupon the right of guid
ing and conducting for two days in each
• week, commencing Friday and continu- !
ing through Saturday —that is, Friday
and Saturday of each week—the watc'r
(lowing in said glen, along the western
: side, in the upper water ditch now exist- j
} ing therein, a portion whereof was dug;
I and opened in the fall of last year, to- ,
j get her with the privilege of keeping the j
', same in repair, the right of digging j
earth therein, and after guiding ana con-1
ducting said water along said ditch, as j
aforesaid, the exclusive right to use and j
distribute th? same for the purpose of ir- j
rigating their lands during the said two
days in each weak.
"Provided, nevertheless, that when the
said waters shall not be used for the ir- i
rigation of the lauds aforesaid, that then j
they shall be permitted to flow in the j
in:ir.nor and mode as directed by said
"To have and to hold the said right of
entry as aforesaid and the privileges j
thereunto annexed to the hM parties of I
SACRAMENTO DAILY RECORD-TTlSnoy, MONDAY, FEBRUARY 23, 1891.—SIX PAGES.
the second part, or either of them, owner
or owners of the land now occupied by
them, and to their or his heirs forever.
"And the parties of the second part, for
and in consideration of th 6 grant herein
before made, hath given, granted, re
mised and released and continued, and
by these presents do give, grant, remise,
release and confirm to said Benjamin D.
Wilson and his heirs and assigns a right
of entry for himself and his servants in
! and upon all the lands now occupied by
I them, called the Rancho del Molino,
being the samo tract of land hereinbefore
referred to, for the purpose of opening
new water ditches upon and through the
said lands, or of using those already
opened, and for the purpose of erecting
and building aqueducts or flumes, or of
using those already erected, and of keep
ing the said water ditches, Humes, or
aqueducts in repair, and for these pur
poses the right to dig earth; also the right
of way in and upon said lands for the
purpose of guiding and conducting said
water as the said Wilson may desire or
I wish, through said water ditches, flumes
or aqueducts now or to bo opened or
built upon or over the said lands in such
directions, along such levels and in such
manner and mode as may seem to him
expedient and useful, but not so as to
wantonly and uselessly injure them, the
parties of the second part and either of
them shall permit to flow except as here
inafter specified, without disturbance,
diminution or injury, through and over
their said lands along the said water
ditches, flumes or aqueducts, to such
point or points outside thereof as the said
Wilson may from time to time select;
subject, nevertheless, to the right of the
parties ofthe second part to use the water
for irrigation of the said lands now OOCU-
Eied by them, flowing in the upper or
igher ditch or in any water ditch,
Hume or aqueduct used,"dug or erected
by the said parties of the first part upon
the lands of the parties ofthe second part,
or either of them, as aforesaid during the
two days hereinafter specified, and sub
ject to their further right to conduct so
much of the water in the upper ditch at
any time when it may be flowing therein
through a pipe two inches in diameter as
may be sufficient to fill the same for the
purposes of domestic use and for the play
ing of a fountain.
"And all the parties hereto mutually
covenant t5 perform all the obligations
herein contracted and agree that the
agreements and stipulations herein shall*
bind as well themselves as their heirs,
! executors, and administrators and as
"In witness whereof the parties to these
! presents have hereunto set their hands
and seals the day and year lirst above
written. B. D. Wilson, Seal'
"MaHcaukt WZLBOH, Seal'
"E. J. C. Kewkh, Seal;
"Fannik Kkvve.v, lSe;il]"
Subsequently Kewen acquired the title
to the Government land occupied by him,
and he also acquired fifty acres, including
the mouth of the Canada from Wilson,
subject to a reservation of all water rights,
and from different sources he acquired
the lands along the course of the stream
below and adjoining the land which he
claimed and occupied at the date of the
contract. All these lands and all his
rights under the contract were thereafter
sold and duly transferred to the de
The plaintiff has acquired certain lands
from Wilson, and succeeded to all his
rights under the contract.
Hoth parties have continuously claimed
| ami asserted and in this action are claim
! ing and assorting the rights socure'd to
their respective predecesKors by the con
tract, and none other. But they differ
widely as to its proper construction, and
the defendant is using 1 water at times and
for purposes which the plaintiff contends
are in excess of his rights, and injurious
This action was brought to determine
the respective rights of the parties in tho
waters of the stream. The Superior Court
sustained the claims of the plaintiff, and
made a decree declaring and establishing
its rights, and enjoining the defendant
from infringing the rights so established.
Defendant appeals from the judgment
and from an order denying a now trial.
The assignment of error principally re
lied on is that tho Superior Court gave an
erroneous construction to the contract of
May 7, 1S(JO. But we think tho court
construed the contract according to the
' intention of the parties, as shown
I not only by its terms, but by their subse
quent action under it. They seem to
have acted upon the assumption that they
had a right to divide between themselves
tho entire flow of the stream, and their
■ agreement, though inartiiicially drawn
| and most awkwardly expressed, clearly
evinces that such was their intention.
Nor can it bo urged against this con
i struction that it imputes to the parties an
intention to do that which they had no
right to do. For, so tar as appears, they
were at that time the sole occupants of the
lands bordering the stream, and the lands
through which it flowed after leaving the
hinds of Kewen belonged to the United
States. Such being tiie case, they had a
; right to appropriate the entire stream for
! any beneficial purpose. Evidently they
i contemplated such an appropriation for
tho purpose of irrigating the land then in
possession of Kewen, and, subject to tho
limited rightssecured to him by the terms
of their agreement, for the further pur
pose of irrigating any hinds owned, or
thereafter to be acquired, by Wilson,
whether riparian to the stream or not.
There Was nothing unlawful or im
proper in such an agreement, or in such
appropriation and diversion of the water,
as between themselves or as against the
It was held by the Superior Court, cor
| rectly, as we think, that by the contract
j Wilson and his successors acquired, as
I against Kewen, and those claiming under
him, the right to use all the wators of the
stream and to divert the same to lands not
riparian, subject only to the rights of
I Kewen, aa defined by tho contract, i. c.,
j the right to use the entire How of tho
stream on Friday and Saturday of each
! week for the irrigation of the land owned
■ or occupied l>y him at the date of the cou
-1 tract, the right to maintain his ditch and
j divert the water on the land of Wilson,
j the right to draw water therefrom, when
ever it might be flowing therein, for do
mestic purposes, and for playing a fount
ain, to the capacity of a two-inch pipe,
and the right to use the ditches, pipes and
works of Wilson, situated on his land, for
the purposes of irrigation on Fridays and
It was also correctly held by the Supe
rior Court that Wilson, in his convey
ance to Kewen of the fifty-acre tract, re
served all water rights then possessfxl by
him, whether dependent on the contract
or apurtenant to the land conveyed.
But it is contended by the appellant
that since he has become the owner of
! the kinds bordering on the stream below
' the land owned or occupied by Kewen at
I the date of the contract, he has, as a ripar-
I ian proprietor, a right to insist upon his
! share of the. waters oi the stream for the
irrigation of those lands, independent of
and'superior to any rights of any party
under the contract.
But he cannot at the same time claim
under the contract and against it. As
above stated, the case shows that he, as
I well as his predecessor, Kewen, has al
| ways claimed and exercised the rights
i secured by the contract and wholly de
j pendent upon it. In his answer in this
1 case he makes no claim as a riparian
j owner, but relies on his construction of
: the contract. We do not see how he oould
maintain positions so inconsistent, even j
if his claim as a riparian owner was
clearly well founded. But he seems to I
have acquired ail his riparian land
through Kewen. If this is so—if Kewen,
' alter entering into the contract with Wil
son acquired title to the lands below him I
—his riparian rights as owner of such I
land became subordinated to tho rights
I he had granted to Wilson by the contract.
j At least it is certain he could not at the
same iirae insist upon rights as a riparian
I owner inconsistent with"the right he had
j granted to Wilson, aud at the same timo
i claim and exercise rights grant.*d by
Wilson upon no other consideration than
; his own grant to him. He could not at I
| the same time enjoy the benefits of his
contract and repudiate its burden.
But, as we haw seen, both Kewen and
the defendant have always claimed nnder
• the contract, and to that they must look
i for a definition of their rights.
In one particular, however, the find
ings and the decree are unwarranted by
the evidence and by a proper construe- i
tion ofthe contract and dead from Wilson i
| to Kewen conveying the fifty-acre tract, j
I it is found as a fact, and decreed accord- I
©hanncfc £latlts fov the flefc fjemsc.
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xi^n^r^—"Pi a ~v~T
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Men's, Boys' and Youths' Rubber Boots and Overshoes.
Women's, Misses' and Children's Rubber Boots and Overshoes.
I Gossamers and Umbrellas.
All at REDUCED PRICES in order to close
out this season.
On basement floor, carloads of bright new
Every-day conveniences; never go out
of style. Every housekeeper wants some
of the below-named goods at our re
Florence Oil Stoves 95c Spring Balances, weigh 4S lbs..7S and 25c
Round Lunch Buckets 25c Larije Bowl Strainer 12c
Planished Octagon Tea Pots, 25c, 35c, 45c Polished Nail Hammers 25c
Coffee Boilers, 4qt 25c Hatchets 25c
2-qt Covered Buckets 10c Cake and Eg? Turners 7c
Deep Tin Bread Pans 10c, 12c, 14c Xntmeg Graters 5c
Large Tin Dippers ice Stove-lid Lifters 5 c
Huffters Flour Sifters 25c Reiinned Lip Sauce Pans, 15c 20c, 25c, 30c
Wash Basins, with ring 10c Acme Fry Pans 13c, 20c, 25c, 30c
Tiu Candlesticks 5C oJ-lnch Pie Plates, per dozen 40c
L<arge Soup Ladels 10c o.]-inch jelly Cake Tins, per dozen 40c
Tiu Water Buckets, 10 qt 25c Large Basting Spnons sc, 7c, Sc
Tin Water Buckets, 14 qt 30c Coal Oil Cans, 1 gallon 25c
Extra-heavy Broilers or Toasters, Large Wire Rat Traps 25c
9*9 25c Three-arm Towel Racks 10c
Copper Bottom Tea Kettles, No. 6 60c Rolling Pins 15c
Copper Bottom Tea Kettles, No. 7 70c Lamp Wicks, per dozen 5c
Copper Bottom Tea Kettles, No. 8 75c Lamp Chimneys ..6c, Sc
Copper Bottom Wash Boilers Lamp Burners 6c, 10c
No. 6, Ji 25; No. 7, $1 35; No. 8, $1 65 Tea Strainers 5 c
Corncake Pans. 6 cakes 20c Metal Spring-bottom Oil Cans
Carpet Tacks 4 papers for 10c SC( (,c, Be, 10c
Sauce or Stew Pans, with cover Screwdrivers, 2-inch blade 5c
15c, 20c, 25c, 30c Retinned Dish Pans 25c, 35c, 45c, 50c
Iron Fire Shovels 10c
This is but a partial list, but sufficient to
give you an idea of our great variety of
Tinware, etc., on basement floor.
C. H. GILMAN,
Red House, Sacramento.
ingly, that plaintiff, as successor to Wil
son, has a right to develop water on the
fifty-acre tract, and that the defendant
has no right to develop water thereon.
We do not think that plaintiff has any
such right, if by developing water v
meant the digginu of wells, running of
tunnels, and the like. Nor do we think
that the defendant is precluded, as suc
cessor of Kewen. either by the deed or
contract, from digging wells, running
tunnels, etc., on the fifty-acre tract for
the purpose of obtaining* water, so long
as he does not thereby interfere with or
perceptibly diminish the natural flow of
Tho decree of the Superior Court should
be modi tied, so far as necessary, to bring
it in harmony with these views.
The cause is remanded, with directions
to the Superior Court to modify its decree
accordingly, and as so modiiied it will
stand affirmed. The appellant to recover
costs of the appeal. Beatty, C. J.
I concur in the judgment in so far as it
directsa modification ofthe decree.but am
unable to concur with the majority in
their construction ofthe contract between
the Wilsons' and the Kewens'. lam un
able to see in that contract an intention
on the part of the parties thereto, to con
vey or partition their water rights. The
object of the contract was to secure water
for the tract q!" land then owned by tho
respective parties. Wilson could not get
it upon his land—portions of his land—
without crossing the lands of Kewen.
Kewen could not get it upon certain por
tions of his land, which lie desired to irri
gate, without the use of the ditch he hud
constructed on Wilson's land. It seems
that Wilson never used this ditch, but he
could get water on his land lying east of
Lako Vineyard by ditches, tlumes and
aqueducts, through which to carry tho
water upon and across Kewen's land.
Each granted to the other an easement for
the purpose of conducting the water upon
his land. In fixing the time each was to
use tho water, they did not necessarily
convey any water right, and, in the ab
sence of an inteution to do so clearly ap
pearing in express and unequivocal
terms, it should not be held that they did.
If a third person had purchased . the
land lying below the IS4JB acres owned
by Kewen, he certainly would not have
baen bound by the contract between Wil
son and Kewen. He could have main
tained his right to the use of tiie waters of
the stream as a riparian proprietor, not
withstanding the iact that the stream had
ts source on the lands ot Wilson. (KiddVß
Laird, 15 Cal. 170; N. Co. „ S. Co. vs. Kidd,
37 Id. 811$ Gould VB. Stafford, 77 Id. 88.1
As between themselves, of course, Wilson
and Kewen could dispose of their wat*r
rights as they chose; but they could not
affect the rights of lower proprietors,
and I am unable to see how the defendant
can be estopped trom claiming tho same
right tliat any other purchaser ofthe land
below the Kewen lands would have had
as a riparian owner. If he had owned the
lower tract at the time the contract |
was entered into by Wilson and
Kewen, or if he had purchased
it before he purchased the Kewen
tract, it does not seem to me that
he would have lost his rights as a riparian
owner of the first tract purchased simply
localise his second grantor had entered
into the contract with Wilson. lamat a
loss to understand why he waived his
riparian rights as owner of the lower
tract by purchasing the Kewen tract.
When he purchased the lower tract he
took with the grant all the right that any
other grantee could have taken.
But, as stated before, it seems clear to
me that the only object of the parties to
the contract was to secure the right of
■way, each from the other, for conducting
■water across the land—the agreement as
to the time each was to use the water being
a mere matter of convenience —and the use
of tho water contemplated by the parties
was confined to the lands then held by
them. It may be, and doubtless is true,
that the defendant is entitled to use the i
water on the Kewen tract only, in accord
ance with the terms of the contract be
tween Wilson and Kewen, and that he
would have no right to use the ditch or
pipes located above for the purpose of
conducting water upon the lower tract—
the tract below the land held by Kewen
at tho time tho contract was made; but
as to such lower tract, I think the defend
ant is entitled to use the water in the same
manner as if no contract had ever been
entered into between Wilson and Kewen,
and as if defendant hp.d never purchased
the upper tract from Kewen.
The defendant did not in express terms
set up his right as a riparian proprietor
in the lower tract,:md there may be a doubt
as to whether such'right has been liti
gated herein. If the issues and the decree
do not cover the righto of tho defendant
as riparian owner of the tract below, re
gardless of tho contract, what I have snid
is inapplicable to the case; but it seems
to me that the decree determines all the
rights of the defendant to tho use of the
water, without regard to any particular
tract ot land. I therefore dissent from
that portion of the judgment which sus
tains iv part the decree of the court be
low. _____ Patkrsox, J.
[Filed February 10, 18itl.]
Habeas Corpus. Police Court, San
For petitioner, Carroll Cook, J. _.
For respondent, W. S. Barnes, District
EX-PARTJK QbO. W. liAKKR, )
ox I Ko. 20,795.
Habeas Cokpus. j
This is an application for the discharge
of the prisoner under a writ of habeas
lie is confined in the County Jail of tho
City and County of San Francisco await
ing trial under an information charging
tho offense oi embezzlement.
One of the grounds relied upon by the
petitioner i'or bis discharge is that the in
formation upon which be is about to be
tried is void by reason of tho iact thai he
has never been legally committed by a
It appears that the court, upon motion
of the defendant, set aside the first in
formation liltd against him, upon the
ground that he had not been legally com
mitted by a magistrate, and ordered that
the District Attorney tile another inform
ation, and it is upon this second inform
mation that the defendant is about to be
An information can only be set aside
upon the grounds:
1. Thai before riling thereof the defend
ant had not been legally committed by a
2. That it was not subscribed by the
District Attorney of the county. (Section
995, Penal Code.)
The phrase "legally committed," as
used hi the foregoing section, refers to the
examination of thu case and the holding
of the defendant to answer, oh prescribed
by Title 3, Chapter 7, of the Penal Code.
Section oi»7 oi the Penal Code, which
prescribes the course to be pur-sued after
an information has been set :iside upou
motion of the defendant, is vague and un
satisfactory; yet, it appears therefrom,
that the court can only order a nc.w in
formation to bo filed when the one in the
tirst instance has been sec aside by reason
I of the (allure of the. District Attorney to
subscribe his name thereto, and that
when the information is set aside because
the defendant has not been "legally com
mitted," then he must be taken before a
committing magistrate for another ex
amination if the District Attorney desires
to further prosecute ihe ca.se.
After the magistrate has decided that a
public offense has been committed, and
that there is sufficient cause to believe the
defendant guilty thereof, it is his duty to
return to the Superior Court the warrant,
depositions, indorsements thereon, un
dertaking, etc., and it is upon these depo
sitions and indorsements that the in
formation is based, And if the informa
tion is set aside upon the ground that the !
defendant has not been legally commit
ted, it can readily be seen that it would
be idle for the court to order another in
formation to lie tiled, for tho same fatal
delects would necessarily be present at
any future hearing.
The prisoner is entitled to his discharge,
and it is so ordered. Gakoutte, J.
Beeciiam's Pills cure sick headache.
_ jUal (gatatc, me. _____
Scoop p c o ot oo~p_oc~agtojsj£ss:Sooocrool^_ol;'cc o"^o^sc oso ob o o o coo
1 Fruit farms I
. Ten jPi-cres E^a-ela^
MONDAY, FEBRUARY 23, 1891,
AT 11 O'CLOCK /\. rv/1.,
At Our Salesroom, lOlß.Fourth St.
Each tract has a choice selection of bearing fruit trees
and table grapes.
The Fruit Ridge obtained its name from adaptability
of the soil to the raising of fruit, it being deep and sandy
A dwelling and horse-power are upon one tract, a
stable upon another.
It is rarely that an opportunity like this is offered to
purchasers, to secure a small farm with a selected or
chard, all bearing, purchaser securing this year's crop.
THE TERMS ARE REASONABLE: Only one-third
cash; deferred payments in five annual payments, at 7
per cent, interest, purchaser paying taxes.
DO NOT NEGLECT TO SEE THEM. Parties desir
ing to drive out will take second left-hand road on Lower
Stockton road, below Twenty-eight and V streets.
FOX FUnTHEi: LM-ORJIATIOS APPLY TO
Edwin K. Alsip & Co.,
REAL ESTATE AGENTS, MANAGERS,
ISTo. 1015 ITo-uLrtbL Street, Sacramento.
ggcal . <&Btatc, etc.
OF MRS. E. B. CROCKER
On tho southwest corner of Third
aud O streets.
ALSO THE STABLE,
On the northeast corner of Third and
O streets, together with all the eari-1
jikos, llxtures, et<;., coutaiued therein,
Most Favorable Terms.
—FOR PARTICULARS APPLY TO—
W. P. COLEMAN & CO.,
Sacramento, Cal. felD-tf
South Sacramento to the Front!
NOW IS YOUR CHANX'E TO OBTAIN A
Fine Building Lot at a low rate ou the
wmrt side of tho Ktectric jßailnmd.
Terms — One-filth cish, balance #10 per
month, with Intercut at 7 per ceut., purchaser
paying taxes. Discount for cash.
DO NOT MISS THIS OPPORTUNITY!
STEPHENS© M HARTMAN,
1007 F"OURTM STREEX.
Agents LONDON" ASSURANCE CORPORA
TION Of ijolMlOU.
Agents NORTHERN ASSURANCE COM
PANY of London.
Agents TRAVELERS' INSURANCE COM
PANY of Hartford, Conn. Life and Acci-
W. P. COLEMAN,
Real Estate Salesroom, 325 J st.
"We have for sale 240 acres of
the old Sargent Ranch, front
ing on Vine street, east of
Stockton road. This is the
cheapest land adjoining Sac
ramento. THINK OF IT!
$6O PER ACRE FOR 240
ACRES. We only want a
small amount down, balance
at a low rate of interest.
Look at it or call and we will
take you out.
ISO acres near Loomis; good
fruit land; $5O per acre.
MONEY TO LOAN.
p. bohl. c. a. CRorcn.
GOING! GOING! GOING!
Do Not Delay Till All Are Gone!
A7-OU WILL REGRET IT IF YOU DO.VT
J. socure a traot of this rich land, only lour
to eight blocks from Electric Railway—sU4o
to 8300 i>er acre.
Two ■ere Tracts, $50 ca.':h, $10 per month.
Five-acre Tracts, $125 cash, §25 per month.
Interest, 7 per cent, net, V.'arninty deed
given r."l«n oin'-halfof purchase pric«* is paid
ancl mortgage taken for the balance. Applyto
FLINT & THOMPSON,
305 J street, or to M. J. r-ILLMAN, 1420 O
street, after 6 P. M. \.
MILLS & HAWK^
Real Estate Agents,
301 a STREKT. CORXKH THIKD,
A SPLENDID PI.ACK FOB A
\J home almost in theclly. Fouracros. with
dwelling house, b.'irn, sin-c!.<, etcu; windmill.
two wolls; situate Thirty-second and T streets,
two blocks from Guthriu's Stiiiion. where one
can take steam cars, or five lilocKs from eleo*
trio street road; price, SU.tiOO. This Uar. op
portunity to get a good home at a. very low
_Agency Ilnloo Jn.snr:uico_Conipany.
LAWTOX. B-VRNETT & CO.
insusice, Loans sezaoatea. Houses to Eem, Collsctiaaj.
402 J street, Sacramento, Cal.
mHE NEWS OF THg WORLD IS CU>'-
J. tamed in the WEEKLY UNION.
§cal estate, (Btc.
A RARE OPPORTUNITY
Good Agricultural Land for $1O
to $2O per Acre.
The Pacific Improvement, Company has re
cently purchased rsrelve thousand acres of
land in the heart of Tehama County, for the
purpose of promoting subdivision and settle
ment. This land embraces lands from first
class Sacramento Valley agricultural land, to
land of fair average quality, and is offered
at from $10 to §20 per acre, in subdivisions
of 40, 80,120, 160 and32o acres.
The terms upon which these lands are offered
are especially attractive. They will bo sold in
subdivisions, as above indicated, by the pay
ment of Interest only for three years, at which
time the purchaser can begin the payment of
principal by paying the first of five equal an
mini installments. Thus no part of the prin
cipal is to be paid for three years, and then
the purchaser is to have five years In which
to pay live equal annual installments, with
Interest at tin-rale of 7 per cent. piT annum,
making payments extending over a-period of
eight years. Intending purchasers are as
sured that this is an opportunity to purchase
land of fair average quality at $10peracre,
aud good agricultural land at §30 an acre,
with other grades of land at prices to corre
spond between these iiguros.
The assertion is frequently made that good
lands, suitable for general farming, and es
pecially adapted for fruit-growing, cannot be
had in California for less than from $f>o to
§100 nn acre. An examination of the land
subject of this advertisement will prove to
home-seekers that this is an opportunity for
the purchase of good agricultural land at $20
an acre, and for qualities grading down to fair
agricultural land at $10 an sore, on terms
of payment which should make the disposi
tion of these lands to actual settlers a result
easy of accomplishment.
The primary object of the purchase of this
body of land was ttie breaking up of a large
holding for the purpose of promoting its settle
ment in smaller quantities and its devotion to
For further particulars call upon, or address,
\VM. U. MILLS.
Lind Agent of the C. P. R. X., Fourth and
Townsend streets, Han Francisco, Cal. fel4-2m
Notice of Administrator's Sale of Real Estate.
T^fOTICE IS HEREBY GIVEN THAT IN
Jl\ pursuance of the order of the Superior
Court of tbe City and County of .San Francisco,
State of California (Department No. 9—Pro
i;i!i .. made on the 10th duv ot February A.
X). IS!J], in the matter of the estate of PETER
WTi.I.IAMM. d;'c<tfvsi-d, the undersigned, the
administrator of tin- eslnto of snirt Petor Wil
tiams, deceased, will sell r.t private .-■«.!<.■ to tho
highest bidder for- cash in gold coin of the
(Jnfted suites, on or afU-rtho 4TH l).\Y OF
I Maiich. A. l)., lb'Jl.ol! the right, Utie,ln
terest, claim, property and estate or tbe gald
Peter Williams, nnrriinort, nt the time of his
death, and all the riicht, title. Interest, claim,
property and estate, taat his said estate hasac
qnired since his death, by operation of law or
otherwise, in and to all thatcci'luin lot. piece
or parcel of land, situate, lying and feeing ta
the town Of E3K (irove, Sacramento County,
Htateof Call foil i in, and described as follows:
Beginning at a point thirty (30) rod* and
five (5) feet na<it of t ne northwest corner of the
northeast quarter <>( section six (G), township
tsix (fi), nurtii range six (6)east,add tv«- north
east corner bf the M. K. Church lot, and run
ninffakmgthe lino of said church lot south one
hundred and sixty-four (KM, f'i-t: lh«>uee east
on.- hundnd aa;l seventy (170) feet; thence
north one hundred aDd sixty-four (164) feet;
them* west <>:io hundred and seventy f 170)
feet on the line of said section six (C) to the
All oflersto purchase tho land unfi premises
herein detidrlbed must b«* in writing, and inuy
be left at the law offices of Messrs. RirfiHrtntn <fc
Eisfier, No. :il" Kansome street, rooms 12 to
}8, i:i the City ;ma County of Sim Kranctec >,
j of California, or deliverert to the .Vdinin
isirator personally, or may be Wed in the office
of the Clerk of the Bopcnor Court of the City
and County of s»n Franoißeu, stnte of Ciili
fornia (Ik-parlineiit No. U— Probate;, at any
time afl«-r the Urst publinut ion uf this notice,
and before the making* of the sale.
Any person offering to purchase, v/hose offer
sliall be accepted by the undersigned, shall, on
notice of the acceptance of the olfer, deposit
with the undersigned tan percent, of the pur
chase mosey, and puy the bai:uice on tho ap
proval and confirmation of the sale by tho
Abstract of title rind conveyance to be at the
expense of the purchaser.
Bated at San Fninclflco, February 11th, A.
Administrator of the estate of Peter Williams,
RKIM9TJEEK & Emxes, Attorney's for Ad
HAVING BOUGHT OUT THE G HOC Kit V
business corner Twentieth aud J streets,
we are now prepared to tarnish the
groceries, and at the lowest prteea. to all our
friends ;;nd ;ialrons. Will open THURSDAY,
February 19th. RUKECH <k COSSICH.
T^l UfCfl if &A?'bS *>^"n« from
i oarly dp?ay, Tvsfltlnif weakness, lost inauluiod, etc»
| I (rill Kcnu a valuai>le treatise (seal'-d; coatainlnK
fr.;i i.iir-.:>-;ilars for homo cure, FREE ot charge.
| A ppien'lld medical r.-ori : Khnuld bo read byjeveiT
i muu who !a n^rvons and deb!Htat*M. Aildrcsi,
1 J?r jf. 17. C* VUWLESa Moodot, t;«v»n-