on the trial the court made findings of fact ent's land. The appellant's land lies to the and conclusions of law, and entered a de- east of respondent's land, and is separated cree defining the rights of the respondent to therefrom by a county road. The deed condrain his land and to irrigate parts thereof, tinues: "It is expressly understood and and also defining the rights of the appellant agreed that the said party of the second part to certain drainage water and ditches upon (respondent) shall have the right of ingress respondent's land for irrigating her own to and egress from said first described tract land. The defendant has appealed from that for the purpose of draining and repairing decree. Fifty-one assignments of error are drainage ditches aforesaid. It is further made in the appellant's brief. These assign-understood and agreed as a part of the conments are not noticed. But appellant makes sideration of this conveyance that the said the following contentions: First, that the court erred in consolidating the two actions; second, that by certain deeds respondent conveyed not only the right to all water upon his land to the appellant, but also the fee of the ditches upon his land; third, that the appellant owns the riparian right to all the water upon respondent's land; and, fourth, that the court erred in not awarding damages to the appellant. We shall briefly notice these contentions in the order stated. party of the second part shall so maintain and operate said drainage ditches as in no way to hinder or prevent the proper cultivation of the tract through which the right of way is hereby granted. It is also agreed and understood that first party (appellant) shall have the right to use such drainage water for the irrigation of their tract of land in sections 12 and 13, in said township and range, and water may be diverted from such ditch for such purpose by means of any 1. Courts of equity are vested with dis- appliances furnished or to be furnished by cretionary powers to consolidate causes, and any of the parties hereto." It is apparent such discretion will not be reviewed except that the deed from the respondent to the apfor abuse. 8 Cyc. p. 593. In Peterson v. pellant did not convey the fee to any ditch Dillon, 27 Wash. 78, 85, 67 Pac. 397, 399, this upon land not conveyed. Water rights then court said: "A court should always be pos- upon or appurtenant to the land conveyed sessed of the power to make orders which no doubt passed, and the trial court so will expedite its business and prevent costs found and decided. It is also apparent that and a multiplicity of suits, when one action the deed of June 16, 1900, above largely will answer all of the purposes of justice. copied, conveyed to the respondent an easeThe consolidation was within the ment "along the line as at present laid out" discretion of the court even if the parties upon appellant's land "for the purpose of are not the same in each action, and the draining surplus water from" respondent's court's order will not be interfered with by land. Hayward v. Mason (Wash.) 104 Pac. the appellate court if the suit involves the 139. But the appellant had a right to use same subject-matter." In this case the par- this drainage water upon her own land for ties were the same and the subject-matter irrigation purposes. She did not thereby acwas the same. The ditches involved were quire the right to go upon the land of redifferent. But the rights of the parties to spondent and control the manner of draindrain and use the water was the real subject- age. The evidence is conclusive that a pormatter, and that was the same in both tion of respondent's land required drainactions. There can be no question that, if age, that 'appellant's land required irrigathe actions had been begun at the same time, tion, and it was agreed that the surplus wathe causes might have been joined in the ter should be drained from respondent's land same complaint. This is one of the usual to and upon appellant's land, and there used tests for consolidation. There is therefore for irrigation. Appellant, however, could no merit in the contention that it was error no more control the method of drainage upon to consolidate the two actions. respondent's land than respondent could con land. The appellant was entitled to the water which naturally flowed upon her land when she bought it from respondent, and to no more. 2. It appears that the appellant purchas-trol the method of irrigation upon appellant's ed her land from the respondent. The deed recited that the land was conveyed with the rights thereto belonging or appertaining, "including all ditches and water rights," except certain reserved rights not in controver- 3. We think the evidence fails to show sy. This deed was executed in February, any riparian right in the appellant because 1900. On June 16, 1900, the appellant by there is no natural stream or waterway deed conveyed to respondent "a right of way shown in the case. The evidence shows that for the maintenance and operation of a a marsh or swamp with no outlet existed drainage ditch across the S. W. 4 of the upon respondent's land. There is some eviS. W. 4 of Sec. 12, township 18 north, range dence that a depression or possibly an out17 E. W. M., along the line as at present let once existed, but such outlet had long laid out for the purpose of draining surplus since been obliterated, and the only outlet water from the S. 1% of the S. E. 14 of Sec. now existing or which has ever been used 11, in said township and range." The first by the appellant is an artificial one. But, description above is of the appellant's land. if the appellant may be said to be a riparian as it was wont, her use would be subject to | John Mally and wife. Judgment of dismis the reasonable use by the respondent for sal, and plaintiff appeals. Affirmed. domestic and agricultural purposes, for he is also a riparian owner prior in time and right. 26 Cyc. p. 979. 4. Appellant argues that the court should have assessed damages in her favor for the loss of crops caused by a diminution of water by the respondent. The court found, and the evidence justifies the finding, that the respondent has not reduced the water supply below what it was at the time the appellant purchased her land from respondent. In other words, that the appellant at all times had had all the water to which she was lawfully entitled. The respondent was therefore not liable in damages for the failure of appellant's crops for lack of sufficient water. The judgment of the trial court appears to be right, and is therefore affirmed. Robertson, Miller & Rosenhaupt, for appellant. Judson & Rochford, for respond ents. MOUNT, J. In the year 1890 the appellant and the respondents settled and filed government homesteads upon adjoining claims, of 160 acres each, in Stevens county. A small creek, known as Grouse creek, flowed through the respondents' land. This creek did not touch the land of the appellant. Government patents were issued to the parties in 1897 and 1898. In the year 1902, after the parties had settled and filed upon their land, the appellant requested permission from the respondents to take water out of Grouse creek and convey the same across the land of the respondents to his own land, for domestic purposes. This permission was RUDKIN, C. J., and PARKER, CROW, granted by respondents orally, and there and DUNBAR, JJ., concur. upon the appellant dug a ditch across the Department 2. Appeal from Superior Court, Stevens County: D. H. Carey, Judge. Action by John Weidensteiner against For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes either on said land," which land had at the same time been sold by defendant to plaintiff, "or wherever they may be found," is a delivery of the horses. [Ed. Note. For other cases, see Sales, Cent. Dig. § 376; Dec. Dig. § 156.*] 2. SALES (8 71*)-CONTRACT-PROPERTY SOLD. In negotiating for a sale of land and horses, defendant_stated that there were between 150 and 175 horses scattered on the range. The situated and located on said land or wherever contract, however, was for "all horses they may be found." Held, that defendant's statement being a mere estimate, and no guaranty of number stated, the contract was for an indefinite number. The evidence in the case, however, is clear that the right to construct the ditch and use the water from Grouse creek was a mere permissive right, granted by the respondents to appellant, and that respondents refused either to sell or convey a permanent right. Such right or license was revocable at the will of respondents, and could not be enforced thereafter by the appellant. Hathaway v. Yakima Water, etc., .Co., 14 Wash. 469, 44 Pac. 896, 53 Am. St. Rep. 874; Prentice v. Mackay (Mont.) 98 Pac. 1081. The permissive use of the ditch or the water across respondents' land, no matter how long continued, could not give title by prescription to the appellant. 22 Am. & Eng. Enc. Law (2d Ed.) 1196; Wiel on Water Rights, § 248, p. 379. Under the Court, Spokane County; E. H. Sullivan, Judge. [Ed. Note. For other cases, see Sales, Cent Dig. § 191; Dec. Dig. § 71.*] Department 2. Appeal from Superior Action by E. A. Patrick against C. E. Watson. Judgment for defendant. Plaintiff appeals. Affirmed. John C. Kleber and Robertson & Rosenhaupt, for appellant. Merrill, Oswald & Merrill, for respondent. circumstances of this case, before there could be any adverse holding, it was necessary for the appellant to have repudiated the license, and brought knowledge of such repudiation home to the respondents. 22 Am. & Eng. Enc. Law (2d Ed.) p. 1198. We find nothing in the record to show that the license given by the respondents to appellant was ever repudiated by the appellant. It MOUNT, J. Appellant brought this action is true that the appellant at one time at- to recover from respondent $4,332.90, the tempted to file an appropriation of certain purchase price of 65 head of horses alleged water under the statute, but such appropria- to have been purchased and paid for, but tion was clearly not effective, under the never delivered by respondent to appellant. rule in Benton v. Johncox, 17 Wash. 277, 49 The case was tried to the court without a Pac. 495, 39 L. R. A. 107, 61 Am. St. Rep. jury. At the close of all the evidence, the 912, because the water was already appro- court found that the plaintiff had not estabpriated by the respondents. See, also, Atkin-lished the allegations of his complaint, and son v. Washington Irrigation Co., 44 Wash. dismissed the action. The plaintiff has ap75, 86 Pac. 1123, 120 Am. St. Rep. 978. If this attempted appropriation could be conIt appears that in October, 1907, the apsidered as tending to show an adverse claim, pellant agreed to, and did, purchase from there is evidence in the record to show that the respondent a farm and all farming imit was not so intended at the time, but was plements and machinery and all horses, catfor the purpose only of preventing an ap- tle, and live stock, with certain specified expropriation by other persons who might sub-ceptions, owned by respondent, for the sum sequently claim a portion of the water. At of $47,500. It is claimed by appellant that any rate the respondent had no notice of any adverse claim against his rights. We are of the opinion, therefore, that the right given to appellant was a mere license, revocable at will, and that there is not sufficient evidence of any adverse holding on the part of appellant to sustain the claim of rights by prescription. pealed. At the purchase price of the horses was $10,000, and that respondent guaranteed that there were as many as 150 head of horses, and that only 85 head were delivered. the time the sale was made a written contract was entered into, the part thereof referring to the live stock being as follows: "Also said first party conveys to said secThe judgment of the lower court was ond party all horses, cattle, and other live right, and it is affirmed. stock and all interests therein owned by said first party, situated and located either upon RUDKIN, C. J., and PARKER, DUNBAR, said land or wherever they may be found, and CROW, JJ., concur. and also all rights and title of said first party to the following stock, brands W A and and all stock bearing said brands which have not heretofore been sold or disposed of by said first party herein, saving and excepting however four (4) work horses, one (1) driving team, and one (1) cow which have heretofore been selected by mutua! agreement of the parties." The appellant testified that he figured the horses at $10. Ann. Codes & St. § 7165 (Pierce's Code, § 1662), making it an offense to obtain money by false pretenses; the statute making no exception, and the act not being without the spirit of the statute. [Ed. Note. For other cases, see False Pretenses, Cent. Dig. § 25; Dec. Dig. § 7.* For other definitions, see Words and Phrases, vol. 3, pp. 2662-2668; vol. 8, p. 7661.] Department 2. Appeal from Superior Court, Kittitas County; Ralph Kauffman, Judge. C. R. Hovey and H. W. Hale, for the State. 000, and that he paid that sum for the horses. We are satisfied, however, that, when the sale was finally concluded, it was upon the basis of a lump sum of $47,500 for the whole property, without any segregation of the price as to any separate article. This point, however, is of no special importance in the case. The appellant also testified that it was his understanding that the horses were to be delivered at the farm, and that the respondent guaranteed that there were at least 150 head of them; but M. J. Swan was indicted; and, from a the written contract contains the final agree-judgment sustaining a demurrer to the indictment of the parties, and no such guaranty ment, the state appeals. Reversed and reis stated therein. The contract contains no manded. statement of any definite number of horses. It states that the respondent "conveys all horses and all interests therein situated and located either upon said land or wherever they may be found." It is clear that the delivery of the bill of sale was the delivery of all of the horses included therein "wherever they may be found." This included those upon the farm as well as those upon the range; and, as indicating that the appellant so understood the contract upon the question of delivery, he testified that 66 head of horses were upon the farm, while the others were upon the range; that he hired men to find the other horses for him; but that these men were able to find only 19 head upon the range, making 85 head that were delivered to him. It was not shown that there were no more horses upon the range. The record clearly shows that neither of the parties knew just how many head of horses there were. In negotiating the sale the respondent stated that there were between 150 and 175 head scattered upon the range, but this was merely an estimate. If the parties intended that there should be a guaranty of 150 head. It would have been an easy matter to have stated so in the written contract. Not having been stated, the contract is conclusive upon that subject. Buckeye Buggy Co. V. Montana Stables, 43 Wash. 49, 85 Pac. 1077, 117 Am. St. Rep. 1032. The trial court was therefore right in its conclusion that the contract was for an indefinite number of horses, and that the delivery of the contract was a delivery of all horses belonging to respondent wherever they may be found. The judgment is therefore affirmed CROW, J. Defendant was charged under section 7165, Ballinger's Ann. Codes & St. (Pierce's Code, § 1662), with the crime of obtaining money under false pretenses. The charging part of the information is as follows: "He, the said M. J. Swan, did in the county of Kittitas and state of Washington, on or about the fifteenth day of January, one thousand nine hundred and eight, unlawfully, feloniously, falsely, fraudulently, and designedly, and with intent to defraud R. L. McDonald, obtain from said R. L. McDonald a sum of money, to wit, fifty cents, lawful money of the United States of America, the property of the said R. L. McDonald, by then and there unlawfully, willfully, feloniously, fraudulently and designedly pretending to said R. L. McDonald that he, the said M. J. Swan and his wife and children were on their way to Iowa and had lost a horse needed by him to convey them thither and that he was without means to obtain another horse; he, the said defendant, making said statements and representa..ons as an appeal for aid; whereas in truth and in fact the said defendant had not suffered the loss of any horse as he the said M. J. Swan well knew; that by means of said false pretenses and representations the said R. L. McDonald delivered to the said M. J. Swan the sum of money aforesaid." To this information a demurrer was sustained by the trial court, and the state has appealed. No brief has been filed by respondent; but from appellant's brief it is made to appear that it was the theory of the trial court RUDKIN, C. J., and PARKER, DUN- that, if one obtained money from another BAR, and CROW, JJ., concur. (55 Wash. 97) STATE v. SWAN. as a charity, although the inducement was a false representation, he could not be charged Iwith the crime of obtaining money by false pretenses. Reference to the section of the Code under which the charge against respondent is made will disclose the fact that there is no limitation or exception made in favor of the one who by any false pretense Obtaining money as a charity on a false obtains a thing of value from another. The representation as to loss is within Ballinger's only question in the case-if, indeed, it For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes 104 P.-10 (Supreme Court of Washington. Sept. 29, 1909.) FALSE PRETENSES (§ 7*)-OBTAINING MONEY AS A CHARITY. may be called a question is whether the lies and to the manifest prejudice of trade act charged is a false pretense within the and credit.' From this the New York court meaning of the law. There is nothing in the argued that such trifling sums as people were act before us to indicate that it was not with- ever induced to give to mendicants or for in the intent of the law to punish a false charity were not likely to cause great injury pretense of poverty and want, nor is it made to industrious families, or to prejudice trade to appear that the act charged is not within and credit. The English courts in construing the spirit of the law. It is only when the their own statute have never so limited it. act is clearly at variance with the legislative Reg. v. Hensler, 11 Cox, Cr. Ca. 570; Reg. intent, or when, although within the letter, v. Jones, Remp. & M. 270. Nor has any other it would do violence to the spirit of the law, court, so far as we, or apparently the counor violate some constitutional right, that sel, have ascertained, adopted the view of courts are warranted in writing exceptions the New York court, which has been repudiatto a general statute; for it must be admitted ed by many of them. Com. v. Whitcomb, 107 that it is within the power of the Legislature Mass. 486; State v. Matthews, 91 N. C. 635; to define as a crime any actionable wrong. Strong v. State, 86 Ind. 208, 44 Am. Rep. Upon principle, also, it would seem that the 292; State v. Styner, 154 Ind. 131, 56 N. E. act charged is a false pretense within the 98; 2 Wharton's Crim. Law, § 1153; Bishop's meaning of the law. By it respondent obtain- Cr. Law, § 467." The doctrine in People v. ed that which was the property of another. Clough was never reaffirmed in the state of Had he appealed to the cupidity, avarice, or New York, and its rule was distinctly repubusiness judgment of the complaining wit- diated by the statute of 1851. In a dissentness, he would have been guilty of the crime ing opinion rendered in the case of McCord v. charged. Then, why is he not likewise guilty People, 46 N. Y. 470, Justice Peckham says if he has appealed to the charitable impulses of the Clough Case: "The Supreme Court of his victim? The same object has been of this state, I say it with great respect, once obtained. He has obtained the property of put an exception in our statute not placed another. Mr. Bishop has defined a false pre- there by the Legislature; that a false pretense as "such a fraudulent representation of tense, whereby charity was obtained, was not an existing fact or a past fact by one who within the meaning of the statute, though knows it not to be true as is adapted to in- plainly within its language. It seems to be duce the person to whom it is made to part settled the other way in England R. v. Jones, with something of value." Bishop, New T. & M. 270. * The recital precedCrim. Law, § 415. In 12 Am. & Eng. Enc. ing the English statute, that evil disposed Law, p. 845, the following definition will be persons had obtained goods by false pretenses, found: "A false representation made by a 'to the great injury of industrious families, person as to his own or another's necessitous and to the manifest prejudice of trade and condition by means of which gifts of money credit,' was referred to as showing that only or property are obtained in charity is a false trade and commerce were sought to be propretense." This court in the case of State tected, and their invasion only were within v. Phelps, 41 Wash. 470, 84 Pac. 24, has said the denunciation or penalty of the act, though that "any pretense which deceives the person this recital was never adopted here. * defrauded is sufficient to sustain an indict This made it necessary for the Legislature to ment or information." The exact question strike this exception out again, and they did now before us, as well as the case (People v. so by an act passed in 1851. Laws 1851, p. Clough, 17 Wend. [N. Y.] 351, 31 Am. Dec. 268, c. 144. Now the act in terms applied to 303) upon which the trial judge seems to all, the virtuous and the vicious, to 'indushave rested his opinion, was considered by trious,' and to idle families alike." The comthe Supreme Court of Wisconsin in the case mon law covered only those frauds which of Baker v. State, 120 Wis. 135, 97 N. W. 566. were perpetrated by the use of a false token Answering the contention that the statute or writing, or effectuated through the instruhad no application to the act of inducing mentality of a conspiracy to cheat or defraud. by fraudulent representation of a fact a dona- It was the intent and object of the statute, tion of money as a charity, the court said: therefore, to embrace all false pretenses, "This contention has support from People v. whether of act, word, or deed, and this comClough, 17 Wend. (N. Y.) 351, 31 Am. Dec. prehends any verbal pretense or representa303, which seems not to have been questioned tion fraudulently uttered sufficient to induce or expressly reaffirmed on this point in New another to part with his property. It will York. The conclusion was reached in that thus be seen that the Clough Case is not supcase on the strength of the recitation which ported by either reason or authority. It is preceded the English statute (30 Geo. II, c. said in appellant's brief that the trial judge 24), which was the prototype of most of the was further induced to hold the information statutes in this country; the latter, however, bad because the acts charged had been denot retaining the preamble. That preamble fined in the vagrancy statute. Section 6724, recited as the wrong to be reached by the Ballinger's Ann. Codes & St. (Pierce's Code, statute the obtaining by evil-disposed per- § 1889). With this conclusion we are unable sons of divers sums of money or merchan- to agree; but, if it were so, it would not fol |