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the first settler, in accordance with the eleventh section of the Act of September 4,1841, and the Commissioner's instructions of September 15, 1841. (Lester, 364.)
The seventh section of the Act of Congress of May 30, 1862, (2 Lester, p. 48), has the following: "That in regard to settlements which by existing laws, are authorized, in certain States and Territories, upon unsurveyed lands, which privilege is hereby extended to California,” etc.
In the existing laws referred to above are the following: “That if, when said lands are surveyed, it is found that two or more persons have settled upon the same quarter section, each shall be permitted to enter his improvement, as near as may be by legal subdivision.” (1 Lester, 238, No. 255). Here then the Register and Receiver have to refer to the map and descriptive field notes of said land, to see if both or all of said settlers, claiming the same quarter section of land under said law, actually settled before the survey of the land in the field, or if one or more of them did not actually settle after the survey of the land in the field, when the lines and corners of the sections were clearly defined on the ground, and as a consequenee whether their settlement was not in violation of law, and a fraud on the first settler who actually settled before the survey of the land in the field.
The act of Congress of February 26, 1859, has the following: “That where settlements, with a view to pre-emption, have been made before the survey of lands in the field, which shall be found to have bee nmade on sections sixteen or thirtysix,said section shall be subject to the pre-emption claim of said settler," etc. (11 U. S. Statutes, 386; i Lester, 396-308, No. 353.)
In Zabriskie's Land Law's of the United States is the folIcwing: “The State acquires a right to all the 16th and 36th sections immediately after such suryey in the field has been made as will enable a person to determine the locality of said sections.” (Pages 493-494.)
In the General U. S. Land Office Report for 1871, on page 35, is the following: “As soon as, in running the lines of the public surveys, the school sections in place are fixed and determined, the appropriation thereof for the educational object is, under the law, complete, except where they are found to be covered by prior adverse rights."
Thus it will be seen that under the law and the instructions of the Commissioners of the General Land Office, and the practice of the Land Department of the Government of the United States, lands are treated as surveyed "when the requisite lines are run in the field, and the corners established.”
We think that the conclusion of the Court below that the application of Linebaugh was void, was erroneous.
Judgment revereed and cause remanded. Remittitur forthwith. We dissent.
CROCKER, J, . RHODES, J.
[Filed April 29, 1878.]
CITY OF STOCKTON vs. CLARK. Appeal from Fifth District Court, San Joaquin County.
-, Judge. STREET ASSESSMENT. — A notice inviting sealed proposals for street work, under
the re-incorporation, act of Stockton, and not containing a reference or diagram and specifications, as required by the act;—Held that the proceedings are invalid, and property is not liable for an assessment based thereon.
STATEMENT OF FACTS. This was an action brought by the City of Stockton as plaintiff, to recover an assessment made against Asa Clark and his property, Lot 1, Block 165, east, of Centre street, defendants, for re-grading and graveling Hunter street, between Fremont and Flora streets.
The City Council, at a regular meeting on June 2, 1773, resolved an intention to order the work done, and fixed the evening of June 16, 1873, at the Council Chamber for hearing objections, etc., and ordered publication of notice, which was done on June 4th, and till the 16th, in the "'Daily Independent”--but did not by resolution authorize any survey or estimate of the work done. But the City Surveyor made a survey, with maps, diagrams, and estimates, without any order, and filed in the City Clerk's office, and which were endorsed as having been approved and ordered filed by the Council on June 2, 1873. All other proceedings following alıpeared to be in order, finally showing a delinquent assessment against said Clerk and his lot. of $60.27 and which he not paying, the City sued for judgment for that amount and costs.
The cause was argued September 6, 1877, and findings being waived judgment was rendered for defendant, for his costs, $5.40. The ground of the decision was the omission of the Council to make and file a preliminary survey,"and to refer, in the "Notice to Contractors,” to the diagrrm and specifications on file,-rendering all subsequent steps void. Appeal from the judgment was taken March 11, 1878.
Jas. A. Louttit, attorney for plaintiff and appellant.
OPINION BY THE COURT. The notice inviting sealed proposals did not refer to a diagram and specifications of the proposed work, as required by the twenty-seventh section of the Act of March 27th, 1872,to reincorporate the City of Stockton, and for that reason the proceedings are invalid, and the defendant's property did not become liable for the assessment.
Judgment affirmed; remittitur forthwith.
[Filed April 29, 1878.] CITY OF STOCKTON vs. SKINNER. Appealed from the Fifth District Court, San Joaquin Co.
; Judge. STREET--ASSESSMENT.--A subsequent resolution being passed by the City
council of Stockton, under the re-incorporation act, and duly entered on its Journal, with reference to a survey, diagram, and specifications before made by the Çity surveyor and filed with the.Clerk ;-Held that it was tantamount to a prior direction to the officer to make such survey, etc., -and was equivalent in law to their adoption.
STATEMENT OF FACTS. This action was brought by the City of Stockton plaintiff, agaiust J. W. Skin. ner and his property Lot No 2. in Block 96, east of Centre Street as defendant, to recover for an assessment made for grading Hunter Street in front of said Lot, etc. The proceedings were the same in all particulars as in the preceding case of Asa Clark, excepting only, that the same contractor having failed to perform the work, the City Council, by rcsolution on October 20th 1873 directed the Clerk to re-advertise, the work which resulted in a contract, and completion of the work, and an assessment of the cost upon the lots, of which the above lot was delinquent for $195.85. All these last proceedings since October 20th 1873 were immediately and duly entered on the City Journal, and signed by the Mayor, the presiding officor. Cause being tried September, 6th 1877, and findings waived, as in the former case, judgment was rendered for defendant as before, and appeal taken on same day, and same ground as iu case of Asa Clark.
Jas, A Louttit attorney for plaintiff and appellant.
OPINION BY THE COURT. The resolution of the City Council of October 20, 1873, admitted to have been duty entered on its journal, was equivalent in law to an adoption of the survey, diagram and specifi. cations before them made by the City Surveyor and filed
with the Clerk, and was tantamount to a prior direction to the City Surveyor to make said survey, diagram, estimates and specifications.
Judgment reversed and cause remanded, with an order to the Court below to enter a judgment for the plaintiffs upon the admissions of the pleadings in connection with the agreed statement of facts. Remittitur forthwith.
agreed admission to cand ca
[Filed April 29, 1878.]
CREIGHTON vs. EVANS. Appeal from Thirteenth District Court, Tulare County.
J. B. CAMPBELL, Judge. DAMAGES. --DIVERSION OF WATER COURSE. --A party diverting the water of a
stream, or any portion of it, from its natural channel, for his own use, he not being a riparian owner-- is liable to at least nominal damages to the party from whom it is diverted, and who owns the land through
which it naturally flows,--even though he has suffered no actual damage. INSTRUCTIONS TO JURY. That a portion of water might be thus diverted, if for
domestic use, and if enough be left for domestic use, and watering stock of the party from whom diverted, though rot causing damage, is erroneous.
STATEMENT OF FACTS. This is an action for damages brought by the plaintiff against defendants. on April 17, 1877. Plaintiff, J. M. Creighton, owning certain lands in Tulare County, situated on "Elk Bayon” or “Tulare River”-a public streamclaimed to have on them 600 head of cattle, and 600 hogs, and a large number of fruit trees, and grape vines, and seventy-five acres alfalfa, all of which were watered by said stream—and complains that on February 25, 1877, defendants, Dudley Evans, D. K. Berry, Alonzo Berry, and Henry Mehring, built a dam across the stream, diverting its waters, causing plaintiff's fruit trees and vines to die, crops to fail, stock to become poor, and many head lost, etc., damaging him $2,500, for which he asks judgment, and removal of the dam, and a perpetual injunction. —Defendants admit a small dam about fourteen inches, across a part of the stream above plaintiff's land, --- did not divert all the stream (but only about one-third). Otherwise makes a full denial. Tried by jury September 18, 1877.-- Judgment for defendant, and costs, $190.25. Stay granted for twenty days. Motion for new trial denied, and appeal taken February 2, 1878, from the judgment, and order denying a new trial, and order denying an injunction.-The instructions to the jury bearing upon the verdict appear sufficiently in the opinion.
Atwell & Bradley, attomeys for plaintiff and appellant.
OPINION BY THE COURT. It is admitted by the pleadings that the water of Elk Bayou flowed in its natural channel through the plaintiff's land, and that the defendant devoted a portion of the water to his own land for purposes of irrigation, and other purposes. It is not averred that he is a riparian owner, and as such entitled to use any portion of the water. There is nothing in the record to indicate that the plaintiff was entitled to divert any portion of the water, and the Court properly instructed the jury that the plaintiff was entitled to recover at least nominal damages, even though he had suffered no actual damage. But, at the request of the defendant the Court also instructcted the jury that if the defendant diverted a portion of the water for a useful purpose—such as, for example, for domestic use and that enough water was left in the stream for the use of the plaintiff for watering his stock and for domestic purposes, and if the plaintiff was not damaged by the diversion, the verdict should be for the defendants. This was not only contradictory to the first instruction, but is erroneous in matter of law. So far as appears from the record before us, the defendants were not entitled to divert the water for any purpose and the plaintiff was entitled to at least nominal damages.
Judgment and order reversed and cause remanded for a new trial. Remittitur forthwith.
[Filed April 20, 1878.] WENTWORTH ET AL, vs. MILLER & LUX. Appeal from twentieth District Court San Benito County.
D. Belden, Judge. CONTRACT-HARVESTED CROP. --The terms of the contract in this case, gave
the lessors a lien upon the harvested crops until certain dues and ad. vances were paid. ---Held that until those dues were paid, the lessons could only hold or dispose of such crops as the servants of the lessees.Purchasers from such lessees could neither acquire nor assert any rights of possession as against such lessors.
STATEMENT OF FACTS. Miller and Lux, defendants, being owners of certain lands in Fresno County, leased, on October 1st 1874, a tract to A. J. Pool, and one to W. J. McNeil, for one year, for a rent of one-fourth of the crops, The Lessors to furnish all building material, and Lessees to put up all buildings, fences, etc, Lessee to do all irrigating of the lands, with water from the “San Joaquin and kings River