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to all the waters of the creek, and had not di- court found that defendant had so divertrerted or acquired any right to such waters oth

ed one miners' inch of said water through er than to a quantity sufficient to supply the pipe.

an iron pipe, and had acquired a right by prc2. SAME-DIVISION OF WATER.

scription to said one inch of water, and · Plaintiffs and defendant owned adjoining also found that defendant had not diverteil land. A creek rose from a spring on defend

or acquired any right to the waters of said ant's land and flowed through the same and through about three-fourths of the length of

(reek other than the said one inch. Defenilplaintili's' land, when it was absorbcil. Defend

ant contends that this finding, except as to ant had never divertel rore than one miners' said one inch, is unsupported by the evidence, inch of the water, and his land containel only

and that the evidence shows that he had three acres and a fraction that was irrigable and adapted to cultivation by means of such wa

adversely diverted all of the water of said ter, while plaintiffs' land contained about 2.000 creek as claimed by him. This contention acres, 50 of which was adapted to cultivation of defendant as to the finding of his claim and susceptible of irrigation from the creek.

to all the water by prescription substantially Held, that a decree vesting in defendant sufficient water to supply his pipe and dividing the

includes all of bis case on appeal; for it balance of the flow so that defendant should will be found on examination that his other have the entire flow for one day out of every 21 points as to findings not being sustained by days, and that plaintiffs should have the balance, was a proper division.

the evidence all point to and are based on

the contention that the finding as to pre In Bank. Appeal from Superior Court,

scription is unwarranted. But, in our opinVentura County ; J. W. Taggart, Julge.

ion, there was ample evidence to support the Action by Soledad Gutierrez and another,

finding that there was no adverse diversion as executors of the will of Benigno Gutierrez,

of the water of the creek other than the deceased, and another, against Henry Wege.

one inch diverteil through the iron pipe. From a part of the judgment in favor of

There was, no doubt, some conflicting eviplaintiffs, defendant appeals. Affirmed.

dence on this point; but there was material See 79 Pac, 119.

testimony that notwithstanding the diverII. L. Poplin, for appellant. G. H. Gouldsion through the pipe there was always water and W. R. Edwards, for respondents.

flowing down the stream onto plaintiffs'

land. MCFARLAND, J. This action was brought

Plaintiffs' land contains about 2,000 acres, to quiet title to the waters of a small stream and the court found that 50 acres of it was called "Casitas creek,” and to have the pro- adapted to cultivation and was susceptible portionate rights of the parties to sail waters of irrigation from said creek, anıl that only definitely determined. The court made find- 3 acres and a fraction of defendant's land ings and rendered a judgment, and from a

was adapted to cultivation and irrigable from part of this judgment defendant appeals.

said creek; and it found that a fair proporNo errors of law are assigned, and the

tionate division of the water of the creek, only grounds for a reversal are that cer

other than the said 1 inch, for irrigation, tain findings of fact are not supported by

would give to plaintiffs the entire flow of the evidence.

the creek, other than the 1 inch, for 20 days owner of a tract of land riparian to said out of every 21 days; and to defendant, in creek ; defendant's land lying immediately

addition to said 1 inch, the entire flow of above and adjoining the land of plaintiffs.

the creek for 1 day out of every 21 days; The creek rises in a spring on defendant's and judgment was rendered in accordance laud, and flows through his land onto the with this finding. Defendant excepts to this land of plaintiffs and runs through plain- fining as not supported by the evidence; tiffs' land about three-fourths of its length, but it is not specifically contended that this when it is all finally absorbed by the soil. would not be a fair division, provided all the Defendant having claimed all the waters of

water other than the 1 inch is to be divided the spring and creek and threatened to di- between the parties; and defendant, in arguvert the same unless plaintiffs pay him cer

ing this point, reverts to his contention that tain money, plaintiffs commenced this action

defendant is entitled to all the water by prefor an injunction against the infringement scription. We think that the evidence fairly of their riparian rights and for a deiree

Warrants the division of the water decreed settling the proportionate ownership of the by the judgment. The other points made by parties of the waters of the creek, and also defendant as to the title to the water of the prohibiting defendant from maintaining a

creek are covered by what has already been certain nuisance, namely, a manure pile, in

said. the creek. Defendant set up his right by pre- As to the nuisance, we think that the eriscription to all the waters of the creek, dence amply warrants the findings of the claiming that for more than five years before court as to that matter and justifies the the commencement of the action he had judgment. continuously, notoriously, and adversely to The part of the judgment appealed from plaintiffs and all the world diverted all 01

is affirmed. the said water onto his own land and used it there, and prevented any of it from flowing We concur: SLOSS, J.; SHAW, J.; ANGEL down through the lands of plaintiffs. The

The | LOTTI, J.; LORIGAN, J.; HENSHAW, J.

Each of the parties is the the

(151 Cal. 340)

affecting the question of residence, and cannot Ex parte COLLINS. (Cr. 1,374.)

be considered in determining the nature of the

cause of action pleaded, which must be found (Supreme Court of California. June 12, 1907.)

from the complaint alone. HABEAS CORPUS-APPEAL AND ERROR-BAIL. 2. SAME_TRANSITORY ACTION.

When, after a habeas corpus hearing, a An action to compel a depositary of stock prisoner has been remanded to the custody in a mining corporation and the pelgee to dewhence he came, there is ordinarily no proceed- liver the same to plaintiff was a transitory acing to be stayed pending a review of that order, tion, and not local as involving a controversy since he is not thereafter held by the order of over real property. remand. but by the warrant or other process

3. CORPORATIONS-VENUE-RIGHT TO CHANGE. lipon which he was held when the writ of habeas corpus was issued, and the power to ad

Under Const, art. 12, § 16, providing that

a corporation may be sued in the county where mit him to bail belongs exclusively to such offi

the contract is made or to be performed, where cer, if any, as had the power to admit him to bail independent of habeas corpus proceeding,

the obligation or liability arises or breach oc

curs, or in the county where the principal and he must make his application for bail in the usual manner as provided by law.

place of business of the corporation is situated,

subject to the power of the court to change In Bank. Application by George D. Collins the place of trial as in other cases, corporation for a writ of habeas corpus. Petitioner hav

defendants have no absolute right to a change

of venue on account of residence. ing been allowed a writ of error to the United

[Ed. Note.-For cases in point, see Cent. Dig. States Supreme Court to review an order

vol. 12, Corporations, $ 1943.] (90 Pac. 827) remanding him to custody, he

4. V'EXT:E-CILANGE-RIGIIT OF DEFENDANT. requests that the writ operate as a super- A defendant against whom no cause of acsedeas. Refused.

tion is stated is not entitled to a change of

venue. George D. Collins, in pro. per.

Wm. Hoff

5. SAME-AFFIDAVIT OF MERITS. Cook and Fliram T. Johnson, for respondent. An affidavit of merits in support of an ap

plication for a change of venue, alleging that BEATTY, C. J. Having allowed the pris- the afliant had fully and fairly stated "the oner a writ of error to enable him to secure case,” as distinguished from the "facts of the

case,” to his counsel, and had been advised a review of the record in this proceeding by

that there was a good defense to the action on the Supreme Court of the United States, and

the merits, was sufficient. baving been requested to order that the writ

(Ed. Note.--For cases in point, see Cent. Dig. operate as a supersedeas, I desire to state vol. 48, Venue, $ 113.] my reason for specially limiting the operation of the order. In certain cases of recent

Appeal from Superior Court, Los Angeles; origin in this state in which prisoners in

County, N. P. Conrey, Judge.

Action by E. C. Eddy against F. T. Houghcustody under process of the superior court have been remanded after a hearing upon

ton and others. From an order denying de

fendants' motion for a change of venue, they habeas corpus in another court, or before a different judge, upon the ground that the

appeal. Reversed. imprisonment was lawful, the judge making J. S. Larew and R. B. Stolder, for appelthe order of remand has allowed a writ of lants. Chas. S. McKelvey, for respondent Ederror and ordered a supersedeas which he dy. Hugh T. Gordon, for respondent Ten. has construed as empowering him to admit nessee-California Gold Mining Company. the prisoner to bail. The order which I make in this case is not to be understood by any

TAGGART, J. Appeal from an order deny. judge to whom an application for bail may be

ing motion for change of venue. made as having such effect. When, after a

The action was begun in Los Angeles counhearing upon his petition for a writ of habeas

ty and the application for change of place corpus, a prisoner has been remanded to the

of trial was made by the defendants F. T. custody froin whence he came, there is ordinarily no proceeding to be stayed pending a

Houghton and Merced Security Savings

Bank. It was based upon the grounds that review of that order. The prisoner is not thereafter held by virtue of the order of re

the cause of action related to a controversy mand, but by virtue of the wårrant or other

over real property situated in the county of process upon which he was held at the time

Mariposa, and the real defendant and party the writ of habeas corpus was issued, and the

in interest (Iloughton) was a resident of Maripower to admit him to bail belongs exclusively

posa county. Two demands for a change apto such officer, if any, as had the power to

pear in the record, one by the defendant Meradinit him to bail independent of the habeas

ced Security Savings Bank, and the other by corpus proceeding, and he must make his ap

the defendant Houghton, and the latter files plication for bail in the usual manner as pro

an affidavit setting out that he is the only real vided by the laws of this state.

party in interest as defendant in said action, and that all the other persons named

as defendants are mere nominal parties. The !! Cal. App. 85) EDDY V. HOUGHTON et al. (Civ. 363.)

defendant Tennessee-California Gold Mining )

Company, which joins the plaintiff in resist(Court of Appeal, Second District, California.

ing the motion, files a verified answer, preJuly 8, 1907.)

senting its interest in the subject-matter of 1. VENUE-CITANGE-AFFIDAVITS-ANSWER. On an application for a change of venue,

the action brought by plaintiff. the affidavit and answer are only available as

In determining the cause of action to be tried neither the affidavit nor the answer essential difference between these statements. can be looked to. The effect of the complaint Rathgeb v. Tiscornia, 66 Cal. 96, 4 Pac. 987. in this respect cannot be varied by either. The order appealed from is reversed. Only as affecting the question of residence will they be considered. Quint v. Dimond, We concur: ALLEX, P. J.; SHAW, J. 135 Cal. 572, 67 Pac. 1031. The only cause of action attempted to be stated in favor

(5 Cal. App. 29) of plaintiff is one against the defendants

PEOPLE v. IIARBEN. (Cr. 44.) Merced Security Savings Bank and IIoughton, and is to compel the bank to deliver to

(Court of Appeal, Second District, California.

Feb. 18, 1907.) plaintiff certain shares of stock of the defendant corporation, Tennessee-California

1. FALSE PRETENSES-FICTITIOUS BANK BILL

-INFORMATION. Gold Mining Company, in which Houghton An information charging that defendant is interested. The relations of the parties passed a fictitious bill in writing on a bank not to the transactions involved in the action, as

in existence, with intent to cheat and defraud

the complaining witness, and alleging that dedisclosed by the complaint, are: The plain- fendant had knowledge of the character of the tiff and defendant Guenther were pledgors bill and of the nonexistence of the bank named of the shares of stock-the bank the pledge

therein at the time he passed such bill, suffi

ciently charged the offense defined by Pen, Code, holder and the defendant Houghton the

$ 476, prohibiting the passage of a bank bill of pledgee. There is no real property involved à bank having no existence, with intent to de

fraud. in the said cause of action attempted to be

Ed. Note.-For cases in point, see Cent. Dig. stated in favor of plaintiff. The extensive

.

vol. 23, False Pretenses, $$ 3+36.] allegations of probative facts anticipating

2. SAME-FICTITIOUS BILL-STATUTES. the bank's reason for refusing to deliver the

Defendant passed an alleged $20 bank bill stock constitute no part of the statement of to complainant in payment of room rent. The a cause of action which the court can consid

bill consisted of two bills pasted together; the

exposed sides being similar to each other. Both er on this motion.

bills were of the denomination of $20 and purNeither of the corporation defendants has ported to be issued by a New Jersey bank which an absolute right under the constitutional had had no existence since 1865. One of the

exposed faces bore the "No. 31,777" and the date provision (section 16, art. 12) to have the ac

1861. and the other showed the number blank, tion removed on account of its place of resi- the date incomplete, the signature by the presidence. Trezevant v. Strong Co., 102 Cal. 19,

dent, but a blank for the signature of the cash36 Pac. 395. The principal place of business

ier. Held that, though such bills were genuine

in so far as they were complete, they were nevof the Tennessee-California Gold Mining ertheless false and fictitious, within Pen. Code, $ Company is stated in the complaint to be at 476, prohibiting the passing of a fictitious bank Los Angeles, Cal., but the complaint states

bill of a bank not in existence, with intent to

cheat and defraud. no cause of action in favor of plaintiff to

[Ed. Note.-For cases in point, see Cent. Dig. which that corporation is a proper or nec- vol. 23, False Pretenses, $ 4.] essary defendant. The defendant Guenther

3. CRIMINAL LAW–OTHER OFFENSES-SYSTEM. passed out of consideration by the stipula- In a prosecution of defendant for passing a tion of the parties in open court. This leaves

fictitious bank bill at Long Beach on October

28, 1905, in payment for room rent, evidence was but the two moving defendants to be consid

also offered of a similar offense alleged to have ered. The bank is a resident of Merced been committed by him in San Pedro on the 3d county, but its demand for change is to Mari- day of November_following. Defendant admitposa county, and may be considered as a

ted being in San Pedro on the day of the alleged

later offense, but tried to establish an alibi as consent to the granting of the motion of the

to the principal offense. Held, that evidence of defendant Houghton, whose demand on the the subsequent offense was admissible to identify ground of his place of residence is for a

defendant as the person who passed the ficti

tious bill at Long Beach, and to show that dechange to Mariposa county. The mining

fendant was operating a system of imposition company being neither a necessary nor proper and fraud. party to the determination of the cause of (Ed. Note.-For cases in point, see Cent. Dig. action therein stated in favor of plaintiff,

vol. 14, Criminal Law, $8 833, 834.] the defendant Houghton's motion should have

4. FALSE PRETENSES-STATUTES-AMENDMENT.

Pen. Code, $ 470, as amended by Acts 1905, been granted, if there was a sufficient show

relating to the offense of signing the name of a ing on the merits. McKenzie v. Barling, 101 fictitious person with intent to defraud, had no Cal. 459, 36 Pac. 8. We think there was.

application to section 476, prohibiting the passThe contention of respondent that the affi.

ing of a fictitious bank note of a bank not in

existence. davit of merits made by the moving party is insufficient cannot be sustained. The affi- Appeal from Superior Court, Los Angeles davit is substantially the same as the one

County; B. N. Smith, Judge. held good in McSherry v. Penn. Co., 97 Cai.

Steven Harben was convicted of passing 042, 32 Pac. 711, except that in the case

a fictitious bauk bill with knowledge of its cited the affiant avers that he “las fully

character, and he appeals. Affirmed. and fairly stated the facts of the case" to E. L. Hutchinson, Henry II. Roser, and H. · his counsel, while in the case at bar the H. Appel, for appellant. U'. S. Webb, Atty. statement is that he “has fully and fairly Gen., and E. E. Selph, Deputy Atty. Gen., stated the case” to his counsel. There is no l for the People.

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TAGGART, J. This is an appeal from a change the sum of $9.90 lawful money. The judgment of conviction, and from an order ruling of the trial court in admitting the denying defendant's motion for a new trial, latter bills to show guilty knowledge and inupon a charge of passing a fictitious bank tent is assigned as error. bill in violution of the provisions of section The record discloses no attack upon the in+76 of the Penal Code. The information formation, either by demurrer or motion in .charges that the defendant on the 28th day arrest of judgment. The appeal presents of October, 1905, passed a certain fictitious three matters for consideration: Does the bank note of a bauk or corporation having no information state a public offense? Is the existence at the time, and charges the de- evidence introduced sufficient to sustain a fendant with knowledge of the false and verdict of guilty? And did the court err in tictitious character of the bill and of the admitting in evidence the bills passed by denonexistence of the bank named in the bill fendant in San Pedro, and the testimony in at the time of the passing of the bill.

connection therewith introduced to show The note or bill is double; that is, it con- that he did pass them and to show the charsists of two bills pasted together, the expos- acter of the bills? ed sides being similar to each other, and the Every essential element of the offense reverse side of each bill being entirely con- for which punishment is provided by seccealed from view. Both bills are of the de- tion 176 of the Penal Code is set forth in nomination of $20, and purport to have been the information. It charges the defendant issued by the State Bank at New Brunswick, with passing a fictitious bill in writing state of New Jersey. One of the exposed

One of the exposed of a bank not in existence, with the intent faces bears the "Xo. 31,777" and the late to cheat and defraud the complaining wit1861. The other shows the number blank ness, and alleges that defendant had knowl. No. -) and the date (18 - ) incomplete. edge of the character of the bill and of the Both are signed “John B. Hin, Prest.," but nonexistence of the bank named in the bill the space preceding the word “Cash'r" is at the time he passed the latter. This is sufblank , Cash'r). The bank named in ficient. the bill closed its doors, or, as one witness Defendant contends that there is no eviputs it, "busted, about 1864 or 1863." It has dence to show that the bills are “fictitious," had no existence, either as a bank of issue but that, on the contrary, all the evidence in or otherwise, since 1863. The bills constitut. this respect tends to show that they were ing the "bill" are worthless, and have had no "genuine" in so far as they were complete, value since the date last mentioned, except a and that the bank was in existence at the nominal one given them by curio dealers. time they bear date. Again, it is urged that, The absence of the name of the cashier indi- the bill or bills not having been properly excates that they were never regularly issued, ecuted and this appearing upon the face or and never became (urrent bank notes, or pos- faces thereof, it or they could not be the sessed any value as such. These two bills, i means of committing a fraud. Webster deso made into one, were on the 28th day of fines "fictitious" as "feigned; imaginary; October, 1903, tendered by defendant to the not real; counterfeit; false; not genuine." complaining witness as $20 in lawful money, If it were the duty of the court to divorce in payment of the sum of $3, being in part these bills from the circumstances under payment for rent of a room in the lodging which they were passed by defendant, sepahouse kept by such witness at Long Beach. rate them from each other, and restore them She accepted the bill as such payment, and to the condition in which they probably were returned to defendant $17 in good money in when they left the bank whose name they change. Defendant immediately left, and bear, it might find them to have been gensaid witness did not see him again until 10 uine at that time; but as prepared by dedays later, when he was under arrest in San fendant, or some one else, with the evident Pedro.

purpose of concealing their real character, In addition to defendant's said conduct, and, as passed, they were “not genuine," but tending to show his knowledge of the char- were false," and instruments of fraud and acter of the bill in question, the prosecution deceit, and the jury were justified by the introduced in evidence two other bank notes evidence in so tinding. or bills, of the denomination of $10 each It is not material to the question that the (made into one in similar manner), purport- bills were not complete and legally issued. ing to have been issued by the Merchants' As appears from language quoted by the Su& Planters' Bank of the State of Georgia, at preme Court with approval in People v. Savannah; also testimony to show the pass- Junroe, 100 Cal. 667, 3.) Pac. 327, 24 L. R. A. ing of these bills by defendant as a $10 bank 33. 38 Am. St. Rep. 323: “It is a matter of note, in payment for a loaf of bread worth perfect indifference whether it possesses or 10) (ents, at San Pedro, on the 3d day of No- not the legal requisites of a bill of exchange, vember, 1.90.), and that the bank named in or an order for the payment of money or the these bills passed out of existence about the celivery of property. The question is whethtime of the close of the Civil War. The tes- er upon its face it will have the effect to detimony shows that in connection with the fraud those who may ilot upon it as genuine latter bills defendant received in returu as I or the person in whose name it is forged. It is not essential that the person in whose pose with which the act was done. While name it purports to be made should have the the subsequent utterance could not establish legal capacity to make it, nor that the per- notice at the prior date, it might, nevertheson to whom it is directed should be bound | less, throw some light upon the intent and to act upon it, if genuine, or have a remedy purpose which actuated the utterer at the over,” The language here used was in rela- time of the passing of the first bill. The tion to forged paper, which might injure ei- same distinction may also be drawn between ther the person imposed upon by its passage, the facts constituting design and those esor the person whose name was forged. By tablishing system. A design implies a prethe passing or utterance of a bank note of a conceived plan or preparation, while system nonexistent bank, no one would be injured may be established by any facts showing a except the person receiving it as a thing of general intent coupled with similarity of value and 1 e to whom he might deliver it method or arrangement. While a preconin the same manner. No question of the ceived plan could not well be inferred from liability of the person whose signature is at- subsequent events, a general system might tached can arise. It becomes unimportant to be deduced from a line of conduct preceding know who signed it, or whether or not it or following the principal event. A system was signed at all. As pasted together, the being established, it would matter little two bills were in effect a simulation of a whether the act complained of was the first current bank note, and intended to deceive. or last individual manifestation of the genThey accomplished this purpose with the eral plan that could be shown. It cannot be complaining witness. Being false, fictitious, denied that a repetition of utterances of and "not genuine," the only test of whether false and fictitious notes tends to negative inor not the passage of this "bill” was a crime nocence in particular cases. Mr. Wigmore was the intent to defraud on the part of the says the principle applicable to such evidefendant.

dence proceeds upon the doctrine of chances. The practice of permitting the introduction As to remoteness of time of the utterances of evidence to prove other or similar offenses sought to be introduced and the similarity of to show knowledge, intent, design, or sys- the notes or bills uttered on the several octem in cases of conspiracy, counterfeiting casions, the rulings exhibit views of all deand forgery, false pretenses or representa- grees of liberality and narrowness. Wigmore tions, receiving stolen goods, embezzlement, on Ev. § 310. etc., has long been recognized by the criminal Conceding that the principle upon which courts. Roscoe's Crim. Ev. (6th Ed.) p. 88; this evidence is introduced is the doctrine of Wharton's Crim. Ev. (8th Ed.) § 39 et seq.; chances or probabilities, the number of the People v. Gray, 66 Cal. 275, 5 Pac. 210, and utterances, their remoteness in time, and the cases cited. Some confusion exists in the similarity of the instruments become matcases as to the principle upon which such evi- ters affecting the weight, rather than the dence has been admitted. A recent treatise admissibility, of the evidence. In such cases, on Evidence (Wigmore on Evidence), by a if the evidence has any application under classification of the cases on the basis of the the rule, whether or not it has sufficient purposes which the evidence is intended to weight to entitle it to be submitted to the serve, has dispelled some of the fog which jury is a question for the determination of envelops the declarations of the courts on the trial court. People v. Frank, 28 Cal. 507, the subject. A distinction holding that facts 51S. The sameness of the peculiar, if not admitted to show knowledge should contain unique, method of preparation of the two an element of notice or warning, while those sets of bills, and the similarity of the manto establish intent need only to negative in- ner of realizing upon them, warranted the advertence or other innocent explanation of court in permitting the jury to determine the act, appears at first sight purely aca- from the two transactions whether or not demic; but in the consideration of appar- the defendant was operating by a system of ently conflicting opinions, by ascertaining imposition and fraud, and to draw therethe viewpoint of the court expressing the from such inference of intent and knowledge opinion, it greatly aids in reducing the ap- as the facts justified. parent inharmony among the cases.

In the consideration of the case the fact The knowledge to be considered here is that which refers to the character of the bill sought to establish an alibi as to the princicharged by the information to have been pal offense, and to prove that he was not in fraudulently uttered. In order that the ut- Long Beach on the 28th of October, 1905, terance of another fraudulent bill should be while he admitted being in San Pedro on the evidence of such knowledge on the part of 3d day of November, has not been overlookthe defendant, it must have been uttered ed. Under such circumstances there is no prior to the time of the passing of the bill in doubt that the admission of the evidence as question. The intent with which the bill to the San Pedro transaction tended to eswas passed, as distinguished from the tablish the identity of the defendant as the knowledge of the passer, however, opens a man who passed the fictitious bill in Long broader field. It includes the knowledge of Beach. Conceding, but not deciding, that it the character of the bill and also the pur- was not admissible for that purpose, it was

is that the record discloses that defendant

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