support of their contention. For instance, no affirmative evidence was offered to the effect that Ellen Williams, assuming that she had paid the various claims before she was appointed administratrix, as it is claimed, had not afterward in due time presented her claim against the estate. In the absence of a showing to the contrary, we cannot disturb the ruling of the court in allowing the claims. The presumption is that the rulings were proper.

Two other claims were presented by Edwin Aldersley and Ellen Williams for services rendered in nursing and caring for James for the two years prior to his death. The contestants served and filed exceptions to these claims alleging that they were barred at the time of presentation, that they were excessive in amount, and that any services rendered by the trustees were in fact gratuitous. Although the respondent admitted that the claims were barred and offered no proof in support of them, they were allowed by the court. This is clearly error. Such claims should not be allowed.

It is no objection to the charge for the monument for James Aldersley that it was also intended to serve as a monument for the grave of John Aldersley. No other objection was made to the claim except the general objection that it was likewise barred.

The attorney for Ellen Williams was allowed fees on the full amount accounted for by her in the first and so-called final account. He did not fully administer upon the property and was therefore not entitled to full commissions. (Estate of Piercy, 168 Cal. 750, [145 Pac. 88].) Moreover, his fees should be based upon the amount of the estate when the account is finally settled.

No other points require mention.

Order reversed.

Shaw, J., Melvin, J., Sloss, J., Henshaw, J., Lorigan, J., and Angellotti, C. J., concurred.

Rehearing denied.

[S. F. No. 8120. In Bank.-February 6, 1917.]

MARY BOND, Petitioner, v. SUPERIOR COURT OF ALAMEDA COUNTY, Respondent.

CONTEMPT-TAKING POSSESSION OF LAND BY PARTY LEGALLY DISPOSSESSED ALIAS WRIT OF POSSESSION-APPEAL.-The amendment of 1907 to section 1210 of the Code of Civil Procedure does not give a right of appeal from an order adjudging guilty of contempt a party who had retaken possession of real property from which he had been dispossessed under a judgment and process against him, and directing an alias writ to issue to restore the possession to the party entitled under the judgment.

ID. STAY OF EXECUTION PENDING APPEAL.-A provision in such order for a stay of execution in the event an appeal were taken from the portion thereof directing an alias writ of possession to issue will be annulled on certiorari.

In an action to quiet title to land pending in the Superior Court of Alameda County, in which the petitioner was the plaintiff and one Irving E. Smith was the defendant, a judg ment was duly rendered in favor of the petitioner and against said defendant, under which the defendant was dispossessed and the possession delivered to the petitioner. The defendant having subsequently retaken possession of the premises, the court made an order adjudging him guilty of contempt in so doing, and directing the possession to be delivered to the petitioner, and the issuance of an alias writ of possession for that purpose, the order containing a provision as follows: "If said defendant, Irving E. Smith, shall appeal from this order directing said alias writ of possession to issue, then and in that event the execution of this order shall be stayed if the defendant, Irving E. Smith, give the undertaking provided by section 1210 of the Code of Civil Procedure of the state of California, provided for in case of an appeal from such order, the amount of which bond is hereby fixed and determined to be the sum of fifteen hundred dollars.

"All proceedings under this order are hereby stayed for the period of five days."

The present proceeding in certiorari was brought to review this order.

F. A. Berlin, for Petitioner.

George W. Reed, and L. D. Manning, for Respondent.

On the conclusion of the oral argument, the following opinion was rendered:

THE COURT (Speaking Through the Chief Justice).-The court is of the opinion that the case is not distinguishable from Huerstal v. Muir, 62 Cal. 479, that the amendment to section 1210 of the Code of Civil Procedure has not changed the law in the respect suggested, and does not grant or confer any right of appeal in such a matter, that under these circumstances Huerstal v. Muir, 62 Cal. 479, controls, and the portion of the order complained of in this proceeding should be annulled.

It is so ordered.

Sloss, J., Melvin, J., and Lawlor, J., dissented.

[Sac. No. 2269. Department Two.-February 7, 1917.] NORTHERN CALIFORNIA POWER COMPANY, CONSOLIDATED (a Corporation), Appellant, v. JOHN WALLER et al., Respondents.

WATER RIGHTS-APPROPRIATION-CARRYING CAPACITY OF DITCHES-NONEXPERT WITNESSES.-In an action between successive appropriator of the waters of a stream to determine the proportionate amounts thereof to which they were entitled, in which the controversy hinged upon the carrying capacity of the respective ditches of the parties and the amounts of water actually carried therein, the opinions of witnesses on such matters, none of whom possessed any engineering attainments or any scientific knowledge of hydraulics, is not admissible as the opinion of experts.

ID. DATA AS BASIS OF EXPERT OPINION-OPINION OF EXPERTS BASED ON DATA ADMISSIBILITY OF OPINION OF ORDINARY WITNESSES.-The general rule upon all such subjects of inquiry is that where possible the data to establish a given condition or fact must be laid before the court, and if scientific knowledge be necessary to formulate these data into a statement of the ultimate fact to be arrived at, this, if it require a special training or skill, may be done by experts.

A necessary modification of this rule is that when these data-these probative facts to establish the ultimate fact-may not thus be presented to the court, the opinions of ordinary witnesses become admissible as being the best evidence available.

ID.-NONEXPERT EVIDENCE TO SHOW CAPACITY OF DITCH.-Nonexpert evidence is inadmissible to determine the carrying capacity of a ditch, where all data concerning its physical condition were before the court, and its gradient was susceptible of exact measurement. ID. ERRONEOUS ADMEASUREMENT OF WATER - FINDINGS EVIDENCECOSTS. In this action to determine the quantity of water to which each of the parties was entitled under their respective appropriations, the method of admeasurement adopted by the court is held to have been erroneous, and the findings to be unsupported by the evidence, and that the plaintiff was entitled to its costs, as it was given a recovery against the claims and contentions of the defendants.

APPEAL from a judgment of the Superior Court of Shasta County, and from an order refusing a new trial. W. D. Tillotson, Judge.

The facts are stated in the opinion of the court.

Carr & Kennedy, for Appellant.

M'Coy & Gans, for Respondents.

HENSHAW, J.-Plaintiff brought its action against John Waller and A. P. Waller, charging them with the partial destruction of a dam maintained to impound the waters of North Battle Creek, in Shasta County, and with threats of the continuance of like trespasses. John Waller filed a crosscomplaint, asserting rights in himself and others in the waters. of this creek, which rights were declared to be superior to those of the plaintiff. The rights of these cotenants, it was asserted, arose out of a prior appropriation by a ditch. known as the Loggerhead Ditch. These cotenants were brought into the action as defendants. While in its form, therefore, this is an action for an injunction against trespass, in its essence it is a controversy over rights to the water of North Battle Creek. Dissatisfied with the judgment of the court in its division of these waters, plaintiff has appealed. Its principal contentions are that the vital findings are not supported by the evidence.

In 1886 the first appropriation of the waters of this creek was made by the defendants and their predecessors in interest through the Battle Creek Bottom Ditch Company's ditch. This ditch is commonly known as and will here be called the "Loggerhead Ditch." The recorded notice declared for an appropriation of six hundred inches of water measured under a four-inch pressure. In 1895 the defendants filed a notice of appropriation by the same ditch of two thousand inches measured under a four-inch pressure. In 1890 and 1891 another ditch taking water out of the creek, was constructed. It was known as the Vilas or the Farlow Ditch, and will here be called the "Vilas Ditch." Appellant contends that by the ownership of Vilas Ditch, which it has acquired, it is entitled to divert 625 inches of water measured under a fourinch pressure, in subordination to the prior right of the Loggerhead Ditch to six hundred inches. The uses of the water under both of these appropriations were originally the ordi. nary agricultural uses-domestic, watering of stock, and irrigation.

Appellant is a public service corporation engaged in the generation and distribution of electricity for light, heat, and power. It develops this electricity by water, and maintains canals, ditches, power-houses, etc., for this purpose. In 1907 it commenced the construction of the "North Battle Creek Ditch to South Power House," a ditch commonly called and which here will be called the "Cross Country Ditch." Under one of its engineers, H. A. Tedford, the locations of water rights were made and the ditch and its dam constructed. They were completed in 1909 and shortly thereafter the appellant purchased the Vilas Ditch and water rights. The capacity of this Cross Country Ditch is four thousand five hundred miner's inches. The court decreed the right to appellant to divert all the waters of the creek to the full capacity of its Cross Country Ditch, in subordination, however, to the prior rights of the owners of the Loggerhead Ditch.

It is over these prior rights that the controversy arises. The court's first award was to the Loggerhead Ditch and to its owners of six hundred inches of water measured under a four-inch pressure. Next there was decreed to plaintiff (by virtue of its ownership of the Vilas Ditch) 120 inches of water under a four-inch pressure, after which it was