(202 P.) by a father for habeas corpus to recover cus-, and attention; that the father and all of the tody of his child and a petition by those having relatives of the said child had willfully dethe child in custody for the legal adoption of serted her, neglected to provide proper care the child, since both cases involve the same and maintenance for her, and that said departies, and the evidence applicable in one sertion and failure to provide had continued would be relevant in the other. Appeal from Superior Court, Yuma County; Fred L. Ingraham, Judge. since 1914. The hearing upon the application for the writ and the petition for leave to adopt came on to be heard on February 15, 1921, and Habeas corpus proceedings by Epigmenio upon an order of the court the cases were Rizo against Pastor Burruel and wife, to re- consolidated and heard together. On the cover the custody of Julia Fidencia Rizo, 15th day of February the appellant filed his and petition by Pastor Burruel and wife to plea in abatement to the petition to adopt, adopt the said Julia Fidencia Rizo were in which he set up that he was a citizen of consolidated for hearing. From judgments the Republic of Mexico and that he had apdenying the writ of habeas corpus and grant-peared before the superior court of Yuma ing the petition for adoption, Rizo appeals. county, Ariz., for the sole and only purpose Affirmed. of determining a writ of habeas corpus for the possession of his child, and that, while Glenn Copple, of Yuma, for appellant. D. A. Fraser and Earl Anderson, both of present in said court, he was served with Phoenix, for appellees. petition for adoption. He further alleges that the minor child, Julia, and the petitioners are citizens of Mexico, and prays that the petition be dismissed for those reasons. This plea in abatement was the only plead made to the petition to adopt. The plea în abatement was overruled. A trial was had before the court. An order and decree of adoption as prayed for by appellees was made and entered, and the writ of habeas corpus was denied. The father appeals from both judgments. ROSS, C. J. The controversy is over the 'custody of one Julia Fidencia Rizo, a female child about eight years old. The rival claimants are the father, Epigmenio Rizo, and Pas-ing filed by the appellant. No answer was tor Burruel and Francisca Burruel, in whose care the child has been since 1915. In January, 1921, the father, who is the appellant here, instituted in the superior court of Yuma county habeas corpus proceedings to recover the possession of Julia from appellee Pastor Burruel. In his petition he bases his right to the custody of the child on the ground that he is her father, and alleges, that he has requested Pastor Burruel, an unfit person to have her care, to let him take the child, but that the request has been refused, and the child is unlawfully detained and restrained of her liberty. Pastor, in his return to the writ, alleges that in 1914 he and his wife, the other appellee, came into the possession of the child, she having been deserted and abandoned by her father, and ever since that date he and his wife have maintained and supported the child, and provided her with the necessities of life. He alleges that the father is unfit to have the care and custody of the child, and asserts his willingness, readiness, and ability competently to care for, educate and support the child, and that it will be to her best interests to be left in their care and control. On the date set for the hearing of the application for a writ of habeas corpus the appellees filed in the same court their petition for leave to adopt Julia Fidencia Rizo, and in said petition alleged that in 1914 Julia Fidencia Rizo was abandoned by her father and delivered into the care and custody of the petitioners, husband and wife, who were then, and for a long time prior thereto had been, actual, continuous, and bona fide residents of Yuma county, Arizona; allege that said child at the time she came into their care was the age of three years, and needed care The first error assigned is the order of the court overruling the appellant's plea in abatement. It is said that the appellant, being a citizen of Mexico, and having come to Yuma county for the sole purpose of prosecuting a writ of habeas corpus for the possession of his child, could not be, against his consent, made a party defendant in another action. In a very recent case this immunity from being sued is stated as follows, quoting from the syllabus: "Suitors, whether plaintiff or defendant, from a foreign jurisdiction are exempt from the service of civil process while attending court and for such reasonable time before and after trial as may enable them to go from and return to their homes." Sofge v. Lowe, 131 Tenn. 626, 176 S. W. 106, L. R. A. 1916A, 734. The reason for the adoption of this rule is based upon grounds of public policy, and relates, as the above court has said"to a matter of supreme_importance the administration of justice. In order that causes may be fully heard and a just result reached, and that an orderly and unhampered administration of justice may be assured, the law has announced the rule of exemption. If parties to a pending case, or their witnesses, are liable to be thus sued, they may be intimidated court's mandate, if actually summoned or suband prevented from complying with the foreign poenaed, or from attending voluntarily, as is their privilege. It is against public policy to permit them to be deterred by fear of being subjected to suit while attending, or so going | limitation expressed in said chapter, nor are or returning." we aware of any good reason why the power of the courts of the state should not extend to the protection, care, and disposition of minor children of foreign birth as well as native born. same, the particular point made being, as we understand it, that there is no allegation in the petition that the child, Julia, was a resident of Yuma county. The statute (paragraph 1188) provides that the superior court [1] While most of the courts have been careful to protect foreign litigants in the matter of their privilege to claim immunity from being sued generally, we think that no [3] It is claimed by appellant that the case will be found that would limit the ad-petition for adoption did not state facts sufversary party to the particular method of ficient to authorize the court to hear the presenting the question involved selected by such foreign litigant. In the present case, for instance, the question involved is the status of the infant child, Julia, and we cannot see wherein the privileges or immunities of the father have been invaded, whether of the county in which the child resides has that status is determined in the application jurisdiction of a petition to adopt such child. for writ of habeas corpus or in the petition But the statute does not require that the for leave to adopt. Practically the same ques- petition shall expressly set forth that the tion is involved in both cases. In Livengood child is a resident of the county where the v. Ball, 63 Okl. 93, 162 Pac. 768, L. R. A. petition is filed. Of course, it is necessary 1917C, 905, it was held that nonresident plain-that that fact be made to appear somewhere tiffs who voluntarily brought an action in in the record, and a petition failing clearly the courts of Oklahoma against a citizen thereof were not exempt from service of summons in an action by the defendants seeking relief connected with the subject of the litigation commenced by them. In Tiedemann v. Tiedemann, 35 Nev. 259, 129 Pac. 313, the court held that immunity from being sued could not be claimed by a nonresident "when within the jurisdiction on matters affecting the same correlated subjectmatter, and the action is brought in good faith and calls for the adjudication of sub-dence clearly shows that the child had been stantial rights." The facts in that case were that the father, a resident of Connecticut, had applied to the courts of Nevada to obtain the possession of his minor child from its mother. His petition being denied, the mother thereupon brought suit for divorce, asking for the custody of the child and a division of property. Some of the courts have gone so far as to hold that the rule of immunity from being sued does not apply to a nonresident plaintiff who voluntarily goes into a state and brings suit therein. Guynn v. McDaneld, 4 Idaho, 606, 43 Pac. 74, 95 Am. St. Rep. 158; Baldwin v. Emerson, 16 R. I. 304, 15 Atl. 83, 27 Am. St. Rep. 741; Mullen v. Sanborn, 79 Md. 364, 29 Atl. 522, 25 L. R. A. 721, 47 Am. St. Rep. 421; Baisley v. Baisley, 113 Mo. 544, 21 S. W. 29, 35 Am. St. Rep. 726; 21 R. C. L. 1305, §§ 50, 51, 32 Cyc. 492. In view of the facts in this case, it is not necessary that we determine at this time which rule of immunity would be enforced in this jurisdiction in a proper case. and definitely to set forth the residence would doubtless be subject to demurrer. The appellant did not demur to the petition in this case. Besides, we think the petition did, in effect, set forth that the child was residing in Yuma county at the time of the institution of the proceedings herein. It is alleged that it was left with the appellees in 1914, and that they had cared for it ever since, and that they had resided continuously in Yuma county for 20 years. The evi kept by appellees at their home at Palomas, Yuma county, continuously from the time it was left with them until February, 1921, the date of the hearing. Lastly it is contended by appellant that the evidence shows that the best interests of the child would be subserved by turning its custody over to him. In that connection he insists that the appellees are not qualified or fit to have the custody, care, and education of his child, and that he is. He also contends that there is no evidence supporting the allegation that he had deserted his child. These were questions upon which the court took evidence, and resolved them against appellant's contention. The finding of the court in that regard is as follows: 66 1915, Epigmenio Rizo, the father of said minor child, brought said minor child to Palomas, Yuma county, Ariz., and left her at the residence of Pastor Burruel and Francisca Burrucl, the petitioners herein, without consulting them, and without making any arrangement or About the month of November, [2] It is claimed by appellant that, inas-provision whatever for the keeping, care, mainmuch as he, his child, and the petitioners to adopt are all citizens of Mexico, the court has no jurisdiction, under chapter 17, tit. 6, Civ. Code 1913, entitled "Adoption," to decree an adoption; it being contended that the provisions of said chapter do not apply to alien residents in Arizona. We find no such tenance, support, or schooling of said minor child, did there desert and abandon said minor child and return to the Republic of Mexico, and ever since said time and until the filing of the petition herein, and for the period of more than five years prior to the filing thereof, the said father of said minor child has continued to willfully and wholly desert and abandon said (202 P.) minor child to the care and custody and con- | thorized the court to hear the cases together. trol of the said petitioners, and the said fa- The decree of adoption appealed from is ther has wholly and willfully failed and neg- affirmed. This necessarily affirms the order lected to provide said minor child with the of the court denying the writ of habeas corcommon necessaries of life or with any support whatever." The court concludes: "That from all the facts before the court in evidence the judge of this court considers that the interests of said child will be promoted by its adoption by the petitioners." [4] As to whether the father intended to abandon and desert his child when he left her with the appellees or not, the evidence was in sharp conflict, but we think the findings of the court on that question are fairly well supported. However, aside from that question, under our law, the interests and welfare of the child are of the highest consideration, and in a proceeding of adoption the court may ignore the natural rights of a parent if in doing so the child's welfare is promoted. Paragraph 1193 Civil Code states the law: "An adoption may be decreed without the consent of the parent, guardian, next of kin, or next friend where the judge considers that the interests of the child will be promoted thereby." Notwithstanding this provision of the statute, we think the natural rights of the parent should not be lightly passed over; but, if the judge, after a careful investigation, comes to the conclusion that it would be better for the child and society for it to be taken from its natural parent and placed in the care of others, the statute gives him that right. As was said in Stearns v. Allen, 183 Mass. 404, 67 N. E. 349, 97 Am. St. Rep. 441: "Adoption involves a change of status. So far as the adopting parents are concerned, the change cannot be made without their consent. So far as an infant child is concerned, the state, as his protector, may make the change for him. The natural parents of the child should be considered, and their natural rights should be carefully guarded, but their rights are subject to regulation by the state, and, if these come into conflict with the paramount interests of the child, it is in the power of the state, by legislation, to separate children from their parents when their interests and the welfare of the community require it." [5] We do not consider that the appellant's objection to the consolidation of the two suits, involving, as they did, the same question, to wit, the status of the minor child, was error. Practically the same question was involved in both cases between the same parties, and evidence applicable to the issue in one case would be relevant and material in the other. We think paragraph 690 of the Civil Code, providing for consolidation of suits between the same parties, au pus. (23 Ariz. 145) STATE v. DART. (No. 1844.) (Supreme Court of Arizona. Dec. 10, 1921.) 1. Eminent domain 112-Damages allowable before taking exclude injury from possible Improper construction. Where damages are assessed before the taking, nothing can be included for wrongful or negligent acts, upon the theory that they may occur, but the damages are limited to such as necessarily arise from the lawful taking and the proper construction and operation of the improvement. 2. Eminent domain 302-Damages recover able after construction of works include injury from improper construction. Damages assessed after the construction of the works should be on the basis of the works as constructed, even if improperly constructed, for the condemnor should not be allowed to assert its own wrong. 3. Eminent domain ~2(10)-Damages to land from diversion of water, caused by filling bridge approach to supersede small bridge, not from exercise of power. The act of the state in filling in bridge approach to supersede small bridge was not in itself an act of appropriation under the power of eminent domain under Const. art. 2, § 17, or so connected with such an act as to impose liability upon the state to pay compensation for damage to land from diversion of the waters of the river by reason of solid embankment, since the making of the fill constituted no new use of the state highway or new appropriation, but was a mere act of repair, and since, if the fill was negligently made, the negligence had no connection with the appropriation as originally made. Appeal from Superior Court, Pinal Coun. ty; O. J. Baughn, Judge. Action by Mattie A. Dart against the State of Arizona. From judgment for plaintiff, defendant appeals. Reversed and remanded, with instructions to dismiss the cause. W. J. Galbraith, Atty. Gen., and George R. Hill and Wm. A. Harkins, Asst. Attys. Gen., for appellant. Bullard & Jacobs and Armstrong, Lewis & Kramer, all of Phoenix, for appellee. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes FLANIGAN, J. This is an appeal by the state of Arizona from a judgment recovered by appellee (hereinafter referred to as plaintiff) in an action to recover the damages sustained by her because of an alleged negligent diversion of the waters of the Gila river, whereby a flood which occurred in January, 1916, inundated her lands and partly washed them away and destroyed improvements thereon. For such damages the plaintiff, in accordance with the provisions of section 6, c. 80 (Laws Regular Session 1912) presented to the state auditor a verified, itemized claim, which claim was refused and disallowed by such officer. The complaint alleges that the damages sustained were the result of the negligent and unskillful construction, location, and maintenance of the State Highway Bridge, near Florence, and that such negligent acts and omissions, exclusive of all other causes, brought about the injuries to plaintiff's lands and improvements. There was evidence for plaintiff to show that she was the owner of 40 acres, of land, with the improvements, situated about a mile and a half below the bridge, on the south bank of the river; that she was farming these lands for agricultural and horticultural crops; that during a flood of the Gila river, which occurred in 1915, the north approach of the bridge was washed out, and that afterwards and before the flood of 1916 the part of the north approach carried away by the flood of 1915 was filled up solid with earth by the officers and agents of the state, so that when the 1916 flood occurred the waters of the river were deflected, by reason of such solid embankment, around the south end of the bridge, and onto plaintiff's land. According to the testimony of one of plaintiff's witnesses, the waters thus diverted by the fill, after escaping around the south end of the bridge, went back into the main channel of the river, and, "swinging from side to side of the river, impinged on both banks," and thus reached plaintiff's lands, on a course from the north bank. While it is charged that negligence existed in the failure to cut the south approach, which, according to the testimony was washed away by the 1916 flood, the plaintiff in this court seems to rely entirely on the alleged negligence of the state in filling the gap made in 1915 in the north approach, it being claimed that this work caused the diversion of the flood which did the damage to plaintiff's property. The bridge itself, of course, was, and the failure to cut the south approach may have been, factors contributing to the result, but, as the jury may have believed that but for the filling of the north approach the waters would have passed away without harm to plaintiff, we consider the case on the theory presented, premising that any causal relation which the failure to cut the south approach may have had is governed by the rules announced. There was no testimony adduced to show that the land had been theretofore flooded, and for aught that appears it may never again be flooded. As above noted, the plaintiff recovered in the lower court upon a complaint alleging that the injury to her property was occasioned by the negligent acts and omissions of the state. In this court, however, a different theory is adopted; it being now claimed that the action is based on the constitutional provision that "No private property shall be taken for public or private use without just compensation having been first made, or paid into court for the owner." Section 17, art. 2. words "negligent" and "unskillful," used to And in this connection it is urged that the characterize the acts or omissions of the state, may be disregarded as surplusage, because the state is liable for the acts com plained of, without regard to whether the work was done negligently or unskillfully. It is said also that the action is for damages caused by the state of Arizona, and not by the territory of Arizona; it being conceded the bridge and approaches by the territory in 1909-1910 gives rise to no cause of action against the state, but asserted rather that the state's own acts caused the injury. The contention is, in short, that the filling of the north approach, and the consequent injury to plaintiff's property, was a taking or damaging for which she should be compensated under our constitutional provisions with reference to the exercise of the power of eminent domain, "upon the principle that the government by the very act of taking impliedly has promised to make compensation" in accordance with the dictates of justice and the terms of the Constitution. Plaintiff's contentions under this head are based largely upon the authority of the following cases, viz.: Tyler v. Tehama Co., 109 Cal. 618, 42 Pac. 240; Reardon v. City and County of San Francisco, 66 Cal. 492, 6 Pac. 317, 56 Am. Rep. 109; Board of Commissioners, etc., v. Adler (Colo.) 194 Pac. 621; U. S. v. Lynah, 188 U. S. 445, 23 Sup. Ct. 349, 47 L. Ed. 539; Chicago v. Taylor, 125 U. S. 161, 8 Sup. Ct. 820, 31 L. Ed. 638; Pumpelly v. Green Bay Co., 13 Wall. 166, 20 L. Ed. 557; and U. S. v. Cress, 243 U. S. 316, 37 Sup. Ct. 380, 61 L. Ed. 746-which hold generally that liability exists to compensate the landowner whose property is taken or damaged for public use, “when he is consequentially injured by the work done, whether it is done carefully and with skill, or not" (Reardon v. City and County of San Francisco, supra), from which plaintiff deduces that liability exists in the case at bar upon the implied contract resulting from our constitutional provision concerning the exer that the construction and maintenance of (202 P.) cise of the power of eminent domain to com- | juries may be anticipated and compensated, pensate her for the consequential damage to her property. those originating from carelessness or neglect, as they cannot be foreseen, neither can the damages resulting from them be in advance measured or provided for." Edmundson v. Pittsburg, M. &. Y. R. Co., 111 Pa. 316, 2 Atl. 404-407. But where the damages are assessed after the works are actually constructed, a different rule applies: ment of damages is had, the damages should be assessed on the basis of the works as constructed, even if improperly constructed, for the condemnor should not be allowed to assert its own wrong." Lewis on Eminent Domain, § 714, and cases cited. "If the works are built before the assess These cases hold that the condemnor is liable to make compensation for property taken or damaged in the exercise of the power of eminent domain, and are instances of assessments of damages made after the appropriation was actually completed. But in all of them it appears that the taking or damage for which compensation was required to be made was the necessary result of the appropriation as made, being more or less inseparably connected with it, and that the taking or damage was of a permanent character. The fact that the works may have been in some respects negligently constructed was not supposed, however, in the instances where negligence was charged or shown, to affect the rights of the parties, for the reasons doubtless that the landowner was just as much hurt by an appropriation so characterized as he would be by acts free from negligence, and because the condemnor would not be permitted to defend by pleading his As we have noted, the cases cited by plainown wrong. These decisions do not directly tiff are not authority for the proposition that answer what we take to be the dominant in- the liability to pay the just compensation requiry in this case, which is: Was the neg-quired by the Constitution to be made to a ligent act of the state in filling the north landowner whose property is taken or damagapproach in itself an act of appropriation un-ed for public use arises from the commission der the power of eminent domain, or so con- of a tortious act unconnected with the apnected with such an act as to impose liability propriation of the property. upon the state to pay just compensation for the damages resulting therefrom? In the Adler Case, supra, for example, the condemnee whose lands were flooded by the works was permitted to abandon in the appellate court the charge of negligence in their construction as not necessary to his cause of action. In the case at bar the acts of the state asserted to have caused the damage to plain [1-3] We think the general rules enunciat-tiff's land are entirely disassociated from the ed by the authorities concerning the elements original appropriation, as we now proceed of damages in cases where the damages are to show. assessed before, and where they are assessed after, the appropriation, may profitably be noted. The authorities are unanimous to the effect that when the damages are assessed before the taking, nothing can be included for wrongful or negligent acts upon the the ory that they may occur, but the damages are limited to such as necessarily arise from a lawful taking and a proper construction and operation of the improvement. Lewis on Eminent Domain (3d Ed.) § 714; Norfolk & W. R. Co. v. Carter, 91 Va. 587, 22 S. E. 517519; Cleveland, C., C. & St. L. Ry, Co. v. Smith, 177 Ind. 524, 97 N. E. 164-172; Utah Lake Irr. Co. v. Jensen, 49 Utah, 19, 161 Pac. 677; Denniston v. Philadelphia Co., 161 Pa. 41, 28 Atl. 1007; Richardson v. Centerville, 137 Iowa, 253, 114 N. W. 1071; Pittsburg, etc., Railway v. Gilleland, 56 Pa. 445, 94 Am. Dec. 98; Hord v. Holston River R. Co., 122 Tenn. 399, 123 S. W. 637, 19 Ann. Cas. 331, 135 Am. St. Rep. 878. The reason for the rule is that damages cannot be allowed for an injury which the law presumes will not be inflicted. No compensation based on such a presumption of negligence or wrongdoing could ever be tolerated by the law (Norfolk & W. R. Co. v. Carter, supra); and "though consequential in In this case the evidence does not disclose at what time a small bridge on the north approach, which was superseded by the fill spoken of, was built, nor that this north approach was not a solid embankment at the time of original construction. We do know, however, that the bridge over the stream was built in 1909-1910 by the territory, and has since been continuously maintained by territory and state for the purpose of a public highway. If, as insisted by plaintiff, the characterization of the act of the state as being "negligent" or "unskillful" is to be treated as surplusage, and the act alone considered, it is difficult to see how plaintiff can have any cause of action. On the other hand, if (as the complaint alleges and as was contended by plaintiff in the court below) the making of the fill was a negligent and unskillful act, causing a consequential damage to plaintiff, it is plain that it had no connection with the appropriation as originally made. And for a taking or injury not resulting as a consequence of the use of a privilege arising from the right of eminent domain, there is no liability to pay compensation as guaranteed by the Constitution. Edmundson v. Pittsburg, M. & Y. R. Co., supra. The making of the fill constituted no new use of the state highway, |