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all persons owning lands under the flow of such a canal which have been irrigated by means of water furnished by such canal became appropriators, and possessed of rights of appropriation in the order of their priority. Had Gould, therefore, not been an appropriator before obtaining water from the Maricopa Canal, he became such at the time he first obtained it from this source and applied it upon his land. Gould and his grantors have irrigated the land in question continuously since 1869. The circumstances under which Gould changed his mode of diversion by taking water from the Maricopa Canal instead of the Wilson ditch cannot be held to have been an interruption of his original right of appropriation. We know of no provision of law by which a right of appropriation may be thus lost. It may be lost by abandonment, or it may be lost to another by adverse user on the part of the other continued for the period of the statute of limitations, and in no other way. Abandonment is a matter of intent as such intent may be evidenced by the declaration of the party, or as may be fairly inferred from his acts. It cannot be fairly inferred that Gould, by abandoning the use of the ditch, rendered useless as a carrier of water by reason of increased diversions from Salt river by older canals, including the Maricopa Canal, and by later diversions by newer canals, intended thereby to abandon his right of appropriation. Such an inference would be unjust to him, and not warranted by the facts.

The stipulation referred to in the statement of facts which Gould was required to sign as one of the conditions upon which he was permitted to obtain water from the canal is of no effect in lessening the liability of the canal company or the rights of Gould as an appropriator of water. As we have said, the water which the canal company diverted and carried was public property, and hence the canal company in its distribution could enforce only such rules and regulations as would be necessary and proper to secure economy of use, the rights of other appropriators, and its own right to collect a reasonable charge for its service. The law fixed and determined the extent and character of the appropriation made by each consumer of water, and the canal company possessed no power by contract to place any limitation upon such appropriation or to lessen its obligation in respect thereto. To recognize the binding force of the stipulation would be to concede to the company powers which it does not possess.

In the light of fuller discussion and a reexamination of the subject, we now hold, contrary to our holding in the Slosser Case, that a canal company occupying relations to its consumers of water like that of the Maricopa Canal Company may not arbitrarily discontinue its service in whole or in part. While such a canal company, in the nature of things, cannot be a common carrier, as

that term is used in law, it is yet a quasi public servant. By an act of Congress approved July 26, 1866, canal companies were granted rights of way for the construction of canals over the public domain. They were also given the right of eminent domain by our territorial statutes. The granting of these privileges presupposes a public use. Oury v. Goodwin (Ariz.) 26 Pac. 377. As a quasi public servant, having received benefits from the public, such a canal company owes a duty to conduct its business as a carrier of water in such a way as may best promote the interests of the community, when this may be done without sacrifice of any of its rights of property. The community is interested in the permanent reclamation and improvement of lands. If a right of appropriation might be made of no use to its holder through the refusal of a canal company to divert and carry the water to which such holder is entitled, and which the canal company has theretofore diverted and carried, the holding of such right of appropriation by such a precarious tenure would not only impair its value to the holder, but would discourage the making of improvements and the putting of the land to which it is attached to its highest and best use. To the extent, therefore, that such a canal company has diverted and carried water from a public stream, and to the extent to which this water has been applied by appropriators for the necessary irrigation of their lands, the canal company must continue this service so long as such service is required by said appropriators and the water is available from the common source. Should the water not be 'available, of course the company cannot suffer any liability to its appropriators, for the measure of its duty is its ability to comply with the reasonable demands of appropriators.

In the case of the Maricopa Canal Company it appears that its practice has been at the beginning of each irrigating season to contract with such appropriators as may desire water for the ensuing irrigating season to supply such water in consideration of the payment of its charge for such service. It was argued in the brief of counsel for the canal company that if it be held that the canal company is obliged to furnish water to all landowners under the flow of its canal heretofore irrigated by it, whether shareholders or lessees of the same or not, the practical result would be that the canal company might be required to furnish more water than it is capable of delivering. This view of the relations of the canal company to such landowners is not to be inferred from the above holding. If applications for water be made during any season in excess of the capacity of the canal to furnish it, the canal company would have the right, and, indeed, it would be its duty, to limit the contracts for the season to its capacity and to those appropriators possessing the older rights of appropriation. In making its con

tracts for such service it can easily guard against incurring liability to appropriators by reason of the amount of water available from the Salt river being insufficient to supply their needs.

Upon the authority of the Slosser Case, as modified in this decision, the judgment of the court below will be reversed, and a decree will be entered in this court establishing appellant's rights as an appropriator of water to the extent needed for the irrigation of his lands, and requiring the appellee to deliver water to an amount not exceeding 70 miner's inches, being the maximum amount heretofore used by him for said purpose, upon the payment by appellant of such reasonable charge as may be established by appellee for its service and a compliance by appellant with the reasonable rules and regulations which may be established by said company in other respects; and that said canal company be required to continue to render said service under said conditions so long as it may possess the ability so to do without injury to the rights of other appropriators having prior rights of appropriation.

KENT, Ɑ J., and DOAN and DAVIS, JJ.,

concur.

(8 Ariz. 451)

BROCKMAN v. GRAND CANAL CO. (Supreme Court of Arizona. March 26, 1904.)

WATERS AND WATER COURSES-IRRIGATION COMPANIES-WATER RIGHTS-ABANDON

MENT.

1. Plaintiff was the owner of a share of stock in an irrigation company, and of the water-right privilege as appurtenant thereto, and irrigated his land by means of water from the company's canal. He sold his land and water right. He repurchased the land without the water right, and thereafter obtained water from the canal by renting other water rights. Held an abandonment by plaintiff of his original water right.

Appeal from District Court Maricopa County; before Justice Street.

Action by Thomas Brockman against the Grand Canal Company. From a judgment for defendant, plaintiff appeals. Reversed. W. H. Stilwell and Kibbey & Edwards, for appellant. C. F. Ainsworth, for appellee.

SLOAN, J. This case is controlled by the law applied in the case of Gould v. The Maricopa Canal Company (decided at this term) 76 Pac. 598.

The organization of the appellee, the Grand Canal Company, its history, its practice with regard to the recognition of leases of its shares of stock by the holders thereof, give it the status found by this court to have been assumed by the Salt River Valley Canal Company in the case of Slosser v. The Salt River Valley Canal Company, 65 Pac. 332, and the Maricopa Canal Company in the case of Gould v. The Maricopa Canal Company. The record shows that Brockman, from 1878

to 1888, was the owner of a share of stock 12 the Grand Canal Company, and of the water right privilege recognized as appurtenant thereto, and irrigated his land by means of the same from the company's canal; that in the year 1888 he sold his land and water right to one Shook; that in 1890 he repurchased his land without the water right, and thereafter obtained water from the canal company by renting other water rights, or shares of stock representing them, until the year 1899, when he applied for water for the ensuing season, and was denied the same by the appellee upon the ground that he was not a shareholder or the lessee of a share of stock.

The segregation of his water right from the land, and the sale of the latter to Shook, and his repurchase of the land without the water right, must be held to have been an abandonment by Brockman of his original right of appropriation. Under the law declared in the Gould Case, when, after his repurchase, he began the irrigation of his land by means of water obtained from the appellee's canal, he then and thereby initiated a new right of appropriation.

The judgment of the court below is reversed, and a decree will be entered enjoining the Grand Canal Company from in any manner or by any means whatsoever preventing a flow of water from the Salt river through the Grand Canal to the lands of plaintiff, described in the complaint, in an amount sufficient for the proper cultivation of the same, and not exceeding the amount used by him upon said land and furnished by the appellee since 1890, upon the payment to the appellee of its reasonable charge for such service, and a compliance with the reasonable rules and regulations governing the diversion, carriage, and distribution of water in its canal, whenever and at all times when, the water available for diversion and carriage in the com pany's canal is not required and used by appropriators of water under the canal having prior rights of appropriation.

KENT, C. J., and DOAN and DAVIS, JJ.,

concur.

(9 Ariz. 29)

MOLINA et al. v. LUCE et al. (Supreme Court of Arizona. March 26, 1904.)

MINING CLAIMS-LOCATION-EVIDENCE-EJECT

MENT.

1. Evidence held sufficient to sustain a finding that a certain part of a mining claim located by defendants was within the boundaries of a previously located claim owned by plaintiffs.

2. Under Rev. St. 1887, pars. 3135, 3137, 3139, providing that ejectment may be maintained by pleading and proving that the plaintiff is entitled to possession and that the defendant dispossessed him before the commencement of the action, where the plaintiff was in possession of a mining claim under a lease and claimed possession to the boundary lines wherever they might be, the entrance by defendants on a part of it which he did not actually occupy, because

he did not know the boundary, was an ouster entitling him to maintain ejectment.

Appeal from District Court, Yuma County; before Justice Kent.

Action by W. D. Luce and another against J. M. Molina and another. From a judgment in favor of plaintiffs, defendants appeal. Affirmed.

H. C. Davis and Smith & Ives, for appellants. Pierce Evans and Chas. A. Mau, for appellees.

DOAN, J. This is an action of ejectment brought on July 8, 1901, for the possession of a mining claim in the Castle Dome mining district, known as the Newe Dil, called also the New Deal, located on October 15, 1890. The appellants in their verified answer claimed the ground in dispute by virtue of a deed to the Blanca mining claim, located April 23, 1900. From a judgment for plaintiffs, and the denial of a motion for a new trial, the defendants appealed, and present to the appellate court two propositions: First, that the undisputed evidence in the case established that the premises in dispute were outside of the boundaries of the New Deal, and therefore the Blanca, the property of the defendants, was a valid location, having been located upon unappropriated public ground; second, that there is no allegation or proof of possession of the premises in the plaintiffs prior to the institution of the suit and of ouster by the defendants, which is necessary to sustain a judgment based upon a complaint in ejectment under the law in force at the time suit was brought.

* That all

Appellants allege that the court erred in finding that the "Blanca lode mining claim encroaches upon and embraces within its boundaries a portion of the property of the said Newe Dil mining claim, as follows, to wit: Said claim commences at a stone notice monument which is the northerly end center monument thereof, and which said monument or point is the southeasterly end center monument of the Castle Dome mine, surveyed March 2, 1876, for James M. Barney, as shown by the records of the United States surveyor's office. that portion of the said Blanca lode mining claim which lies southeasterly of the said Castle Dome mining claim, or the said southeasterly end center monument thereof, is a part and parcel of the said Newe Dil mining claim"-for the reason that there is no evidence to sustain such finding. The facts bearing on this question, as disclosed by the record, are substantially as follows: The Hopkins claim was located December 11, 1871, and claimed 800 feet on the Buckeye ledge, the notice recorded in Castle Dome district and the public records of Yuma county. The Norma claim was located January 1, 1876, 1,000 feet on the Buckeye ledge, Castle Dome district, Yuma county, commencing at the north monument of the Cale

donia, and running thence in a northeasterly direction 1,000 feet to the southern monument of the Hopkins claim. The Castle Dome mine was surveyed for patent on March 2, 1876, 2,000 feet in length by 200 feet in width, running northwesterly and southeasterly, the south end center monument of said Castle Dome mine being located 379 feet north, 22° 15' east, from the initial point for mineral surveys in the Castle Dome mining district, established in the patent to the Flora Temple mine granted by the United States on the 26th day of April, 1875, according to the field notes in the United States Surveyor General's office. No evidence of its location appears in the record. The Newe Dil was located October 15, 1890, being 1,500 feet, "commencing at this stone notice monument, which is the northwesterly end of said claim, and running thence fifteen hundred feet in a southeasterly direction to a stone monument," situated in the Castle Dome mining district, county of Yuma, Arizona territory. "This claim is bounded on the northwesterly end by the Barney claim, and on the southeasterly end by the claims formerly known as the Caledonia and formerly known as the Norma mine." The Blanca was located April 23, 1890, length of claim 800 feet, 400 feet in a southerly direction, and 400 feet in a northerly direction, from the center of the discovery shaft, lengthwise of the claim, together with 100 feet in width on each side of the center; general course from north to south, "situated and located in Castle Dome mining district, in Yuma county, territory of Arizona, in the east side of the Flora Temple, and in the north end of the Norma mine." It appeared in evidence that the Castle Dome claim was patented by one James M. Barney, and was generally spoken of throughout that district as the Barney claim or mine. The judge of the district court having credited plaintiffs' testimony upon that question, so far as this appeal is concerned it is conceded by the appellants that the certificate of the location of the New Deal will be considered as reading, "This claim is bounded on the northerly end by the Castle Dome mine." It is contended by the appellants that the premises in dispute were located between the northwesterly end of the New Deal and the southeasterly end of the Castle Dome, the Blanca claim having been located with the south center end of the Castle Dome near its center, about half of it overlapping that patented mine, and the other half being located on the unoccupied ground between the northwestern end of the New Deal and the southeastern end of the Castle Dome. The plaintiffs, however, maintain that, there being no vacant ground at that point, the Blanca was an utterly invalid location, having been located in 1900 about half of it on the Castle Dome mine, patented in 1876, and the rest of it on the northwestern end of the New Deal claim, located in 1890. A survey of the premises was made by a deputy min

eral surveyor, who started from the initial point for mineral surveys in that district, and traced the lines and monuments of the two patented claims, the Flora Temple and the Castle Dome, finding the lines and corners as designated in the field notes. He then made a survey of the New Deal, finding the two end center and four corner monuments of that claim substantially as described in the location notice, the southeasterly end monument being 1,392 feet southeast of the southeasterly end of the Castle Dome, with an old monument about two feet south of it that would answer for the northern monument of the Caledonia. A map made from the field notes of this survey was introduced in evidence. A survey of the premises was made by the defendants, giving the location of the monuments and boundaries of the Blanca claim, but was started without any reference to the initial point for surveys in that district, and without any discovery or location of any of the monuments or boundaries of either of the patented mines. A map made from this survey was introduced in evidence by the defendants. This map includes a plat of the New Deal claim, the south end of the old Norma, the south end of the Castle Dome, and the south end of a supposed Barney claim, that was referred to in the testimony of some of the witnesses for the defendants, but of which no location notice was ever found or placed of record. These claims were placed upon the map from the discovery of monuments at certain points, none of which were known to the surveyor, and none of which, except those of the Blanca, were found by him from following the calls of any location notice or the field notes of any former survey, but were pointed out to him, to use his expression, "by some of the fellows" who were with him. In no instance does he give the name of the persons who pointed out the monuments, nor does he state in his testimony that such monuments were pointed out by persons who built them or who knew them to be the monuments they represented them to be. Such being the case, this survey is absolutely valueless for any purpose except to give the location of the Blanca claim, and, if the finding of the trial court that the Blanca was an invalid location by reason of none of the ground on which it was located being unappropriated public ground at the time of the attempted location is found to be supported by the evidence in the case, the location of the Blanca will be immaterial.

The record on which the appellants base the alleged error in the finding under consideration is the testimony of witnesses as to statements made by Vomocil, the locator of the New Deal and the grantor of the appellees in this case. This testimony is all directed to statements relative to the north monument of the Norma, and is not necessarily irreconcilable with the finding refer red to. These were all conversations held

by illiterate men, who were unacquainted with the lines or boundaries of the claims in that district, and were had 10 or 12 years prior to the trial of the case. In all of them reference is made to the north end of the Norma. They are assumed to be contradictory to the evidence of the plaintiffs, and inconsistent with the finding of the court, by the assumption that the north end of the Norma was identical with that of the New Deal. The conversations were referred to as having occurred about the years 1890, 1891, or 1892, but in every instance the witnesses used the term "Norma" when referring to the claim. Some of them speak of the "Old Norma," and from the language of the witnesses it is not clear whether there was an old Norma and a new Norma prior to the location of the New Deal, or whether they refer to the New Deal as the new Norma. An examination of the record satisfies us that the monument referred to by Vomocil in these conversations was the north monument of the Norma claim, and, as the south end of the New Deal is identical with the south end of the Norma, viz., the north end of the Caledonia, and the New Deal claim is 1,500 feet in length, while the Norma claim was only 1,000 feet in length, four or even five hundred feet of vacant ground northwest of the Norma could have been covered by the location of the New Deal before the location of the Blanca, and this evidence, if accepted and given credence, would be entirely consistent with the finding of the court. This presenting a question of conflicting evidence, and the record affording substantial evidence to support the finding of the trial court, we shall, in accordance with the rule invariably followed by appellate courts in such cases, decline to interfere with or set aside such finding.

In support of the next proposition, appellants claim that the court erred in finding "that before the commencement of this action, to wit, on or about the 10th day of January, 1901, plaintiffs were rightfully in possession of the said Newe Dil mining claim, and claimed the right to occupy and possess the said premises, and that on said lastmentioned day the defendants wrongfully entered into and upon the said claim and dispossessed the plaintiffs, and have ever since unlawfully withheld from the plaintiffs the possession of a portion of said Newe Dil mining claim as hereinafter described," for the reason that there is no evidence to sustain such finding.

The law prior to September, 1901, under which appellants insist actual possession and ouster must be averred and found, read as follows (Rev. St. 1887):

"3135. (Sec. 4.) The action of ejectment may be maintained in all cases where the plaintiff is legally entitled to the possession of the premises. *

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"3137. (Sec. 6.) It shall be sufficient for the plaintiff to state in his complaint that

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"3139. (Sec. 8.) It shall be sufficient to entitle the plaintiff to recover to show at the time the action was commenced, the defendant was in possession of the premises claimed, and that the plaintiff had a right to the possession thereof."

In support of their position on this question, appellants cite from the testimony of the plaintiff, in which he says, "I was in occupation of the ground covered by the certificate, all but the 400 feet there," and at another point, "I was in possession of all but 400 feet of this mine." They then cite from the testimony of defendants' witnesses statements of Vomocil, made about the year 1890, in which he speaks of the ground lying north of the Norma as being vacant ground that might be taken up by some of those parties. It is possible that Vomocil at the times mentioned was occupying the ground under the Norma location. If so, the ground referred to was probably vacant, as the old Hopkins claim may, prior to that time, have been abandoned, but it is likewise possible that, within a short time after such conversations, Vomocil, by the location of the New Deal, which extended 500 feet further north, covered the ground that was unoccupied at the time he made these statements; and the plaintiff Luce, while he stated that he was occupying the ground, except that 400 feet, likewise testified in the same connection: "Q. Have you ever been in possession of that whole four hundred feet? A. I always thought I was in possession until them fellows went to work there. Q. Then you have never been in possession of that four hundred feet, have you? A. I supposed I was. I was showed that ground, and I supposed that it was on the ground that belonged to me that I had leased. Q. In this complaint you stated you were wrongfully ejected from those four hundred feet. Is that a fact? A. I considered I was wronged when they were working my ground." The plaintiff testified that he was in possession, under a lease, of the New Deal mining claim and several others when the defendants started in to do the work complained of; that he had been in possession continuously for about three years, and had taken out and shipped about $50,000 worth of ore during that time from the leased premises; that he felt sure that these men were working on his ground, but did not make claim to it, because he did not know where the end of the Barney claim was; that, as soon as he found from the survey where the end of the Barney claim was, he claimed the ground, notified the parties, and proceeded against them. The fact is not con

tradicted that he was in possession of the New Deal mining claim at the time, and claimed possession to the boundary lines thereof wherever they might be as determined by the monuments, intending to hold, and supposing that he was holding, possession to the southeastern end of the Castle Dome as his northwestern boundary line; and if he was not in the actual pedal possession of the 400 feet at the northern end, by reason of the fact that he did not know where the New Deal stopped and the Castle Dome mine began, he was nevertheless in actual possession of part of the New Deal, and in such constructive possession of all of it as would render the entrance by the defendants upon any part of it that might then not be actually occupied by him, by reason of his not knowing the location of the dividing line between it and the adjoining mine, an ouster. The allegations of the complaint, and the evidence as presented in the record, are sufficient to support a judgment under the law as it existed at the time suit was brought.

The judgment of the district court is affirmed.

SLOAN and DAVIS, JJ., concur.

(9 Ariz. 1)

ELIAS v. TERRITORY. (Supreme Court of Arizona. March 26, 1904.) CRIMINAL LAW-CONTINUANCE-ABSENT WIT

NESS-DILIGENCE-CHANGE OF VENUE-MUR

DER-EVIDENCE-SUFFICIENCY-JURY-DRAW

ING SPECIAL VENIRE-VIEW-STATUTES-CON

STITUTIONALITY-JURORS-COMPETENCY.

1. An application for a change of venue in a criminal case will not be granted unless it affirmatively appears that there is such prejudice in the community as will be reasonably certain to prevent a fair and impartial trial.

2. The intemperate expression of a crowd of people on the streets of a city at the time of a homicide, and the publication of a couple of inflammable articles in the newspapers within a few days thereafter, is insufficient to demonstrate the impossibility of a fair trial, so as to warrant a change of venue, where the county contains one city of more than 10,000 inhabitants, and where the trial occurred nearly a year after the killing.

3. Denial of a change of venue in a criminal case will not be interfered with on appeal save where the record shows an abuse of discretion.

4. Where in a criminal case defendant was granted a continuance from the October term of the court until the next April because of the absence of witnesses, and about a month before trial he caused a subpoena to be issued for the witnesses, without instructing the sheriff where they could be found, and without informing the sheriff that one of the witnesses was generally known by a name other than that given in the subpoena, and it did not appear that there was any probability of one of the witnesses ever being secured, and it being a question whether the evidence of such witnesses would materially affect the defense, there was no abuse of discretion in denying the application.

5. Rev. St. Ariz. 1901, par. 2807, provides that, where a sufficient number of jurors fail to appear, the court, in its discretion, may order a sufficient number to be drawn forthwith and

1. See Criminal Law, vol. 14, Cent. Dig. § 243.

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