DIVORCE (Continued).

the divorced wife, and by way of compensation for the deprivation growing out of his own wrong, which allowance it may subsequently increase or diminish as the changed circumstances of the parties shall warrant. (PATERSON, J., dissenting.)—Ex parte Spencer, 460. 2. DEFINITIONS ALIMONY PERMANENT ALLOWANCE COMPENSATION TO WIFE.-Alimony in its strict technical sense proceeds only from husband to wife; and is applied by the legislature only to an allowance for the support of the wife pendente lite. The permanent allowance provided for by section 139 of the Civil Code is not, properly speaking, permanent alimony, nor is it merely a substitute for the wife's interest in the common or separate property of the husband, but is allowed by way of compensation for a wrong done to the wife.-Id.

8. CONTEMPT-INABILITY TO COMPLY WITH ORDER-CONCLUSIVENESS OF FINDING-HABEAS CORPUS.-The court may enforce compliance with its order for the payment of a monthly allowance by the divorced husband for the support of his divorced wife, by imprisoning him for contempt for its violation, his only remedy being to purge himself of contempt by showing to the satisfaction of the court his inability to obey the order, and that such inability has not been caused by his own act for the purpose of avoiding payment. The finding of the court as to his ability is conclusive upon habeas corpus, and the prisoner cannot be discharged from imprisonment, if the facts showing jurisdiction appear upon the record.—Id. 4 ALIMONY-ALLOWANCE OF COUNSEL FEES-JURISDICTION-DISMISSAL OF APPEAL.-When, after an order allowing monthly payment of alimony to the plaintiff in an action for a divorce, a separate order is made allowing one hundred and fifty dollars counsel fees, an appeal from such order must be dismissed because the amount in dispute is too small to give the court jurisdiction.-Langan v. Langan, 618. 5. SUPPLEMENTAL CROSS-COMPLAINT ADULTERY AFTER COMMENCEMENT OF ACTION-TRIAL-FAILURE TO OBJECT-APPEAL.-In an action for divorce, upon the ground of extreme cruelty, where, by consent of plaintiff, a supplemental cross-complaint is filed by defendant, charging plaintiff with adultery committed after the commencement of the action, and issue is taken upon such cross-complaint by answer thereto, and a trial is had thereon without objection, and a divorce is granted thereupon to defendant, it is too late to object for the first time, upon appeal, that the supplemental crosscomplaint sets up a new cause of action, accruing after the commencement of the action, or that it contained no prayer for relief, and must be regarded only as a defense, etc. Where a case is tried upon the theory that the issues are properly joined in the trial court, and no objection or exception is taken there, it is too late to raise such objection upon appeal.-Kirsch v. Kirsch, 633. 6. CUSTODY OF CHILDREN-POWER AND DISCRETION OF SUPERIOR COURT APPEAL FROM PART OF DECREE-DISMISSAL.-An appeal may be taken from that part only of a decree of divorce in favor of plaintiff which awards the care, custody, and control of the children to the defendant, reardless of the power of the lower court to modify

DIVORCE (Continued).

its decree in that respect. Nor will the rule that the appellate court will not disturb the action of the court below in exercising its discretion in such matters affect the question whether the order as to the custody of the children is appealable or not, or constitute ground for a dismissal of the appeal. Any part of a final decree is appealable, whatever its nature.-Luck v. Luck, 574.

7. VACATION OF JUDGMENT-SUPERIOR COURT OF SAN FRANCISCO— TRANSFER OF CAUSE WITHOUT NOTICE-FAILURE TO APPEAR AT TRIAL-DISCRETION.-When an action of divorce, which is at issue upon a verified answer, has been set for trial in one department of the superior court, on a day upon which it is preceded by many causes ready for trial, which would probably prevent a hearing upon that day, and its transfer to another department of the same court for hearing upon the same day, at the instigation of the plaintiff, without notice to the defendant, and a judgment thereupon obtained upon an ex parte hearing, it is a proper exercise of the discretion of the court to vacate the judgment and grant a new trial, upon motion of the defendant, upon a showing of the facts. Such matters are largely in the discretion of the trial court, and its decision will not be reviewed, unless an abuse of discretion appears. -Cottrell v. Cottrell, 457.

8. DEPARTMENTS OF SUPERIOR COURT.-While the different departments of the superior court of San Francisco constitute, theoretically, one court, still, practically, for the purpose of the trial of causes, they are as distinct as other superior courts; and to transfer a cause from one department to another, and try it on the same day, without notice, is an abrupt proceeding, from which, at least in a divorce case, it is proper to relieve the absent party.-Id. 9. IMPOSITION OF COSTS-AFFIDAVIT OF MERITS-FAILURE TO USE AFFIDAVIT-BILL OF EXCEPTIONS.-The court is not now required by the Code of Civil Procedure to impose costs as a condition of vacating a judgment; nor is any affidavit of merits required upon a motion to vacate the judgment in a divorce suit; nor is the order erroneous because no affidavits were made or used, if the bill of exception shows a ground upon which the court might properly exercise its discretion in vacating the judgment.—Id.

10. PUBLIC NATURE OF DIVORCE SUIT.-The public has an interest in the result of every suit for divorce, and the policy and letter of the law concur in guarding against collusion and fraud; and it should be the aim of the court to afford the fullest possible hearing in such matters.-Id.

See JUDGMENT, 1, 2.

DUE-BILL. See NEGOTIABLE INSTRUMENTS, 1.

EASEMENTS.

1. CONSTRUCTION OF CODE.-Section 801 of the Civil Code merely enumerates and defines the different kinds of easements which may be appurtenant to land; and does not prescribe or regulate the manner of acquiring them.-McDaniel v. Cummings, 515.

EASEMENTS (Continued).

2. CREATION OF EASEMENTS-CONTRACT-COMMON LAW.-Ordinarily an easement is created by contract or grant, express or implied; but with respect to the flow of surface water, the question of easement or no easement depends upon the law defining the mutual rights and obligations of the owners of adjoining lands, which are regulated in this state by the common law. Id.

3. WATER RIGHTS-FLOW OF SURFACE WATER-STARE DECISISFLOOD WATER DISTINGUISHED FROM SURFACE WATER.-The case of Ogburn v. Connor, 46 Cal. 346, is affirmed on the principle of stare decisis, to the cfect that the owner of an upper tract has an easement to have the surface water which has been accustomed by a natural flow to pass off from his land, over the land below, flow over such land, without obstruction; but the rule thus affirmed is confined to surface water having its sources in springs or descent from the clouds in the form of rain or snow, which the owner of the higher land cannot keep out by any practicable means, and does not apply to flood waters, which the owner of the higher land may restrain by the same means employed by his neighbor.-Id. 4. INJUNCTION AGAINST LEVEE-OVERFLOW OF SACRAMENTO RIVER.A proprietor of higher land bordering on the Sacramento River cannot enjoin the erection of a levee or embankment by the proprietor of lower land adjoining his in the rear, the design of which is to prevent the overflow of the river from flooding the lower land, though such embankment may increase the accumulation of flood water on the higher land; the owner of the higher land having like means of protecting his own land.-Id.

5. DITCH-PRESCRIPTION-ADVERSE USER-CONTINUITY.-The continuity of adverse user required to give a presumptive right to an easement depends upon the nature and character of the right claimed. An omission to use the easement when not needed does not disprove or break the continuity of user shown by using it when needed. The claimant of an irrigating ditch, constructed by him over the land of another, may prove a prescriptive right thereto by showing the use of water therein for irrigation when needed during the cropping season for the period of five years.-Hesperia Land and Water Company v. Rogers, 10.

6. TAXES ASSESSMENT OF LAND-EVIDENCE.-If it does not appear that an easement in the use of a ditch over the land of another, to which a prescriptive right is claimed by adverse user, has ever been assessed for taxes, the assessment-book, showing an assessment of the land over which the ditch runs, is not admissible against the claimant of the easement.-Id.

EJECTMENT. See HUSBAND AND WIFE, 7; MORTGAGE, 6; TENANTS IN COMMON, 2.

ELECTION.

1. ELECTION

CONTEST-ILLEGAL

VOTES-APPORTIONMENT-MALCON

DUCT OF ELECTION BOARDS-REVIEW ON APPEAL.-When upon an

LXXXIII. CAL-43

ELECTION (Continued).

election contest a recount of the ballots shows that a large number of illegal votes were cast, but the record on appeal does not disclose for whom they were cast, or that any of them were cast for respondent, no prejudicial error appears in a pro rata apportionment of the illegal votes by the superior court between the respective candidates; and the reception of such votes, though it may amount to malconduct on the part of the election boards, cannot be considered on that ground, if it does not appear in what precincts they were cast.-Russel v. McDowell, 70.

2. DEDUCTION OF ILLEGAL VOTES-BURDEN OF PROOF.-In order to justify the deduction of illegal votes from the total vote of the contestee, it devolves upon the contestant to show not only that they were illegally cast, but they were cast for the contestee.-Id. 8. SPURIOUS PRINTED BALLOTS-AMENDMENT OF ELECTION LAW NOT RETROSPECTIVE.-Under the election law as it stood in 1888, before the amendment of 1889 (Stats. 1889, p. 209), while party ballots fradulently pasted with the names of candidates of the opposite party whose ballot was cast, that law did not apply to fraudulently printed ballots of similar character; and ballots cast at the election in 1888 for a Democratic candidate for sheriff, whose name was fraudulently printed on the Republican ticket, must be counted for the Democratic candidate. The amendment of 1889 was not retrospective in its operation.-Id.

4. ELECTION LAW-MANDATORY AND DIRECTORY PROVISIONS-REJECTING VOTE OF PRECINCT.-It is only those provisions of the election laws relating to the time and place of holding elections, the qualifications of voters, and such others as are made essential prerequisities to the validity of an election, that are mandatory. All others are directory merely, and an honest or mistaken disregard of them not resulting in manifest fraud, will not justify the rejection of the entire vote of a precinct; but a neglect of directory provisions designed to prevent fraudulent voting, followed by actual fraud of that character sufficient to throw a doubt on the result of the elec tion, is ground for rejecting the entire vote of a precinct, where there is no means of purging the poll.-Id. 5. MALCONDuct OF ELECTION BOARD CONSTRUCTION OF CODEFRAUDULENT DISREGARD OF DIRECTORY PROVISIONS-ANNOUNCING RESIDENCE OF VOTERS.-Misconduct of an election board will warrant exclusion of the entire vote of the precinct as illegal, under section 1112 of the Code of Civil Procedure, without requiring proof of particular illegal votes cast, if the board has disregarded mandatory provisions of the statute, or such directory provisions as were designed to prevent fraudulent voting, followed by such actual fraud as throws suspicion on the result, without any means of purging the poll. Disregard of the provisions of sections 1225 and 1226 of the Political Code, requiring the residence of voters in incorporated towns be announced and recorded on the poll-list, followed by proof that many more persons voted than there were qualified voters actually resident on each lot in the precinct on the day of election and for thirty days previous, establishes a prima facie case of fraudulent

ELECTION (Continued).

voting, which justifies rejection of the entire vote of the precinct, in the absence of rebutting evidence.-1d.

See COUNTY.

EMINENT DOMAIN.

1. TAKING OF LAND ON STREET-PURLIC BOUNDARY-HEARSAY EVIDENCE ANCIENT REPUTE.-In an action to recover damages for the taking of land by a railroad company, consisting of part of a city lot situated on a public street, evidence of common reputation or hearsay, existing before the controversy arose, as to the initial point of the survey of the street, to show the line of the street, is admissible. Common reputation or hearsay is admissable to establish a boundary line of general or public interest, provided it existed before the controversy arose.-Muller v. Southern Pacific Branch Railway Company, 240.

2. OBJECTION TO EVIDENCE-PRELIMINARY QUESTION AS TO REPUTE OF BOUNDARY OF STREET.-A preliminary question asked of a witness as to whether he had learned from reputation, hearsay, or otherwise, what was the location of the initial point of the survey of a public street, is not objectionable on the ground that hearsay evidence is called for; nor does the fact that further examination might have brought out inadmissible testimony make such preliminary question objectionable.---/d.

3. DAMAGE TO LAND NOT TAKEN-EVIDENCE OF VALUE-OFFERS OF PURCHASE QUESTION OF FACT.-Evidence as to bona fide offers made for the purchase of a lot not taken abutting land taken under the right of eminent domain is admissible to prove the value of the land not taken upon the issue of damages, the weight of such evidence and the bona fides of the offer being questions of fact for the jury.-Id.

4. TAKING OF STREET FOR RAILROAD-MEASURE OF DAMAGES.-Where the fee of one half of a street is in the plaintiff, the measure of damages for the taking of the street by a railroad company for its road is the value of plaintiff's interest in the land taken when the railroad company entered to construct its road, subject to the easement for a public street, and the measure of damages to the lot not taken abutting the street is the difference between its value at the time the railroad company entered to construct its road, and its value when the road was completed. If there was no depreciation in the value of such lot when the road was completed, there has been no damage, and none can be allowed.-Id.

5. EVIDENCE-SPECULATIVE DAMAGE TO LOT NOT TAKEN-INSTRUCTION. Evidence as to what the value of the lot not taken would have been had the railroad been built upon another street is not admissible to show the damage to the lot, since the damage to be allowed is not a failure to realize a profit which, under another state of matters, might have been realized, but the loss actually suffered, and it is error to refuse to instruct the jury that such supposed value cannot be considered.-Id.

6. DAMAGE TO BUSINESS ON LOT NOT TAKEN.-In arriving at the value of the land not taken, all its capabilities or the uses to