the court ordered one of his witnesses into Accused cannot complain on appeal that custody on a pending misdemeanor charge in the presence and hearing of the jury which tried accused, thereby discrediting such witness, where accused did not call the person as a witness or assign the court's action as misconduct.

Stockton on that night, and believed the tes- |2. CRIMINAL LAW ( 1035*) - PRESENTATION BELOW. timony of the hotelkeeper. That circumstance, with the fact that he had in his possession the property shortly after it was stolen, together with the further circumstance that he had made contradictory explanations or statements of how he had come into its possession-not mentioning other suspicious incidents-were, we think, amply sufficient to support the verdict of the jury.

[2] The exhibits which were admitted in evidence were sufficiently identified as being the property of the concern burglarized. Some of them were positively identified as being taken from the store; others were shown to be of a similar brand and make to those handled in the store burglarized, in common, however, with other stores. The rulings of the court in admitting this evidence were not erroneous by reason of insufficient identification. Woodruff v. State (Tex. Cr. R.) 20 S. W. 573; Mitchell v. State, 94 Ala. 68, 10 South. 518; Underhill on Crim. Ev. §§ 47, 379.

Defendant is mistaken in saying that the trial court failed to instruct the jury as to the law upon circumstantial evidence. The record shows that the jury were carefully and fully instructed on that subject.

[Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 2633-2638, 2643, 2644; Dec. Dig. § 1035.*]

3. CRIMINAL LAW (§ 1171*)—APPEAL-HARMLESS ERROR-IMPROPER ARGUMENT.

Where accused testified on cross-examination that he had been convicted of a felony, it cannot be said that a statement in argument by the district attorney that accused was in the habit of planning burglaries was prejudicial, though the district attorney had no right to go into the details of other criminal operations by accused.

[Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 3126, 3127; Dec. Dig. § 1171.*]

Appeal from Superior Court, City and County of San Francisco; William P. Lawlor, Judge.

James Wing was convicted of second degree burglary, and appeals from the judgment and from an order denying his motion for a new trial. Affirmed.

J. K. Ross, of San Francisco, for appellant. U. S. Webb, Atty. Gen., for the People.

KERRIGAN, J. The defendant was con

[3] The court committed no abuse of its discretion in denying defendant's last application for a continuance of the hearing of his motion for a new trial. It had already granted three continuances of the motion, the last of which took the matter up to within one day of the time which the court could have victed of the crime of burglary in the second granted defendant, under the provisions of section 1191 of the Penal Code, without nul- degree, and sentenced to serve a term of five lifying the verdict. The continuance request-years in the state penitentiary, the sentence to run concurrently with a previous sentence ed was for an indefinite time, and, if it had for a similar crime. This is an appeal by the been granted for more than one day, the terms of section 1191 of the Penal Code defendant from the judgment and from an would, as just stated, have been violated, and order denying his motion for a new trial. [1] Defendant makes the point that the verthe court rendered powerless to pronounce dict is contrary to the evidence. judgment. The purpose of this section was to expedite the hearing of appeals in criminal cases, and, the defendant having been given a reasonable opportunity to prepare for the hearing of his motion, it follows that the denial of a further postponement was proper.

Very briefly the evidence introduced by the people shows that a room of the prosecuting witness was burglarized on the 7th day of September, 1912, and from it there were taken wearing apparel, jewelry, a razor, and a pawn ticket for a diamond ring. Notwithstanding that the defendant and a friend of his called Kelly occupied rooms in another building in San Francisco (the crime being committed in that city), the defendant just prior to the 7th day of September rented a room in the Hotel Belvedere adjoining the room of the prosecuting witness, and on the morning of the burglary, at about 11 o'clock, the defendant and associates of his were seen near the room of said witness, and at about that time one of the defendant's callers was. noticed leaving the building with a large bundle, which looked like a bundle of clothes. On the same day, when the defendant was questioned by detectives of the police department concerning the crime, he claimed to

(48 Mont. 268)

HOWELL v. BENT et al.

(Supreme Court of Montana. Nov. 29, 1913.) JUDGMENT (§ 951*)-PRESUMPTIONS TO UPHOLD JUDGMENT-MATTERS CONSIDERED.

know nothing about it; yet when he was
searched part of the stolen jewelry was
found on his person, and the wearing apparel
was later found in the rooms which he oc-1.
cupied with Kelly. True, he offered an ex-
planation of how he came into possession of
the articles; but the jury evidently disbeliev-
ed his explanation, and adopted as true the
evidence introduced by the people, drew
legitimate inferences therefrom, and arrived
at their conclusion of the guilt of the defend-
ant. We think it is plain that the evidence
supports their verdict.

[2] Defendant's next point is stated to be that the jury received evidence out of court. It is based upon the assertion that the court ordered one of the defendant's witnesses into custody of the sheriff on a misdemeanor charge pending in the superior court on appeal, and that this was done in the presence and hearing of the jury, and discredited the witness to such an extent that the defendant was prevented from using her evidence. Of course, the defendant was not prevented from calling such person as a witness, although he may have considered it more prudent not to do so, and, leaving out of consideration the conflict in the affidavits introduced by the people and defendant respectively on the latter's motion for a new trial upon this feature of the case, the defendant, not having called such person as his witness, nor assigned the alleged action of the court as misconduct, is in no position now to complain.

[3] Defendant also assigns as prejudicial error the conduct of the district attorney, who, in his argument to the jury, used the following language: "He [referring to the defendant] was in the habit of getting burglaries committed-planning burglaries. Twelve men chosen as jurors have tried him and convicted him of a felony."

It appears that the defendant took the stand in his own behalf, and on cross-examination it was shown that he had been convicted of a felony. While we think the district attorney had no right to go into the details of the other case, still we are unable to say that the observation of the district attorney prejudicially affected the defendant's case, and this must have been the view of the defendaant, for the incident was not assigned as misconduct, nor was the court requested to instruct the jury to disregard the remarks.

There are other assignments of error in defendant's brief; but each of them has less merit than those already discussed, and are consequently unworthy of detailed notice. The judgment and order appealed from are affirmed.

We concur: LENNON, P. J.; RICHARDS, J.

In an action for damages by diversion of a stream, it appeared that in a previous suit in involving the right to the use of such water, a which plaintiff and defendant had participated, decree was entered establishing plaintiff's right as prior both in time and right to the rights of any of the defendants, and enjoining interference with plaintiff's rights. Held, that in the absence of the pleadings in such suit and of any evidence to the contrary, it would be presumed that the court had properly before it, not merely the relative rights of the parties in order of time, but the possibility of interference with the plaintiff's right by diversion above him, and that there was foundation for the decree in all its substantial particulars.

Cent. Dig. §§ 1808-1812; Dec. Dig. § 951.*]
[Ed. Note. For other cases, see Judgment,
2. JUDGMENT (§ 717*) - CONCLUSIVENESS
MATTERS CONCLUDED.

In a prior suit to which plaintiff and defendant were parties, involving their water rights and the possibility of interference with plaintiff's right by diversion above him, plaintiff's prior right was established and defendants were enjoined from interference therewith. Rev. Codes, & 7917, declares that only that is deemed to have been adjudged in a former judgment adjudged, or which was actually or necessarily which appears upon its face to have been so included therein. Held that such former judgment necessarily determined that at that time the waters of the creek did not sink and bethat evidence to the contrary was not admissicome lost between the ranches of the parties, so ble until a change in the conditions subsequent to the decree was shown.

[Ed. Note.-For other cases, see Judgment, Cent. Dig. § 1248; Dec. Dig. § 717.*] 3. TORTS (§ 22*)-JOINT LIABILITY.

When two or more parties act, each for himself, in producing a result injurious to another, they cannot be held jointly liable for the acts of each other.

[Ed. Note.-For other cases, see Torts, Cent. Dig. §§ 29, 31; Dec. Dig. § 22.*]

.WATERS AND WATER COURSES (§ 152*)—
JOINDER OF PARTIES-STATUTES.

Rev. Codes, § 4852, providing that in actions to protect water rights plaintiff may join all persons diverting the water parties defendant, so that the rights may be settled in one action, authorizes only a suit in equity to settle the relative priorities and rights of all the parties to the water, in which damages are a mere incident, and does not authorize a single action at law for the entire damage, either with or without an apportionment to each of his share of the damage.

[Ed. Note.-For other cases, see Waters and Water Courses, Cent. Dig. 88 156, 157; Dec. Dig. § 152.*]

5. APPEAL AND ERROR (§ 1170*)-HARMLESS ERROR-ERKOR NOT AFFECTING RESULT.

the court shall disregard error which does not Under Rev. Codes, § 6593, providing that affect the substantial rights of the parties, where the judgment is correct and could not, in the same action, be otherwise, so that errors assigned do not affect it, the court cannot reverse therefor.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. $$ 4032, 4066, 4075, 4098, 4101, 4454, 4540-4545; Dec. Dig. § 1170.*]

•For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

137 P.-4

Appeal from District Court, Yellowstone cient quantity to allow him to divert thereCounty; Sydney Fox, Judge.

Revised Codes; but, as early as 1895, the law was declared otherwise in Miles v. Du Bey, 15 Mont. 340, 39 Pac. 313. That case arose squarely upon the interpretation of section 1260, fifth division, Compiled Statutes 1887, which is identical with section 4852, Revised Codes, and in deciding it this court held that an action like the one at bar will not lie, and that the section in question authorized the proceeding here employed only in a suit in equity to "settle the relative priorities and rights of all the parties to the water, or the use thereof, of the stream mentioned," in which the damages claimed are a mere incident. See, also, Blaisdell v. Stephens, 14 Nev. 17, 33 Am. Rep. 523; Beach v. Spokane Ranch & Water Co., 25 Mont. 379, 65 Pac. 106.

down to satisfy his claim whenever needed by | less proceeded upon the assumption that such him. While it is true the pleadings in that authorization is to be found in section 4852, action are not before us, the decree itselfas admitted by the respondents—is of such a character that we must presume, in the absence of anything to the contrary, that the court had properly before it, not merely the relative rights of the parties in order of time, but the possibility of interference with the right of Howell on account of diversions above him. If at that time the waters of Sage creek sank and were lost between the ranches of respondents and that of appellant, no assertion of rights to such waters by respondents or their predecessors in interest, and no diversion of such waters by the respondents or their predecessors in interest, could constitute an interference with Howell. In such a situation there would have been no occasion for the injunctional portion of the decree. As we cannot presume the decree to have been without foundation or meaning in any of its substantial particulars, it follows that the Circuit Court of the United States in entering the decree necessarily determined that at that time the waters of Sage creek did not sink and become lost between the ranches of respondents and that of appellant. Rev. Codes, § 7917; Lokowich v. City of Helena, 46 Mont. 575, 129 Pac. 1063. This conclusion is strengthened by the testimony in the record before us, as well as by the decision of the case in the Circuit Court of the United States in the first instance (Morris v. Bean [C. C.] 146 Fed. 423), and in the Circuit Court of Appeals, where it was intermediately affirmed (Bean v. Morris, 159 Fed. 651, 86. C. C. A. 519). It being the adjudicated fact that when the decree of the Circuit Court of the United States was entered, the waters of Sage creek did not sink and become lost, no evidence to the contrary was admissible until a change in the conditions subsequent to the decree was shown.

[3, 4] But the error is of no avail because the plaintiff was not entitled to judgment. The complaint leaves one in some uncertainty as to whether the pleader intended to charge that the respondents acted jointly or severally in diverting the water. If jointly, it is not sustained by any evidence; if severally, then the complaint, the evidence presented by the appellant, and the instructions given to the jury at his instance were consistent, but were grounded upon a theory wholly untenable. It is well settled that when two or more parties act, each for himself, in producing a result injurious to the plaintiff, they cannot be held jointly liable for the acts of each other; nor, in the absence of statutory authorization, can they be sued in one action for the entire damage, either with or without an apportionment to each of his share of the damage. In pursuing their course, counsel for appellant doubt

[5] We fully realize that the foregoing consideration is not made a matter of specific argument in the briefs before us, but it is argued that the judgment should be reversed and a new trial directed because of the errors assigned. If-as is the case-the judgment is correct, if it could not in this action be other than it is, then the errors assigned could in no wise affect it; and we are forbidden as well by the statute (Revised Codes, § 6593) as by the rules of reason, to order a reversal (Knipe v. Washoe Copper Co. et al., 37 Mont. 161, 95 Pac. 129). Accordingly the judgment and order appealed from are affirmed. Affirmed.

BRANTLY, C. J., and HOLLOWAY, J., concur.

(56 Colo. 153)

MCDONALD et al. v. KUMMER et al.

(Supreme Court of Colorado. Dec. 1, 1913.) 1. DEEDS (§ 112*)-DESCRIPTION OF PROPERTY -REFERENCE to Map.

Where land is described in a deed according to a plat or map, the deed is to be construed in connection with such plat or map for the this does not exclude other means of identificapurpose of identifying the property, though tion not in conflict with the map.

[Ed. Note.-For other cases, see Deeds, Cent. Dig. 88 323, 324; Dec. Dig. § 112.*] 2. DEDICATION (§ 19*) - CONSTRUCTION AND OPERATION OF PLAT.

A recorded plat of a tract of land divided into lots through which was a street showed the boundary of the lots as excluding the street. The owner's statement filed there with stated that he had reserved for the use of the public forever a roadway or street through the tract, and, after giving the measurements of the lofs, stated that such measurements ran from the center of the street, but that such described roadway was reserved for such use forever. with the map, but, if it was, the map controlHeld, that the statement was not in conflict led, and the lots did not include any part of the street, whether the title to the street by dedi

For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

cation was in the county or whether it was reserved forever for public purposes.

OF

[Ed. Note. For other cases, see Dedication, Cent. Dig. §§ 35, 37-47; Dec. Dig. § 19.*] 3. DEDICATION (§ 19*) - DESCRIPTION PROPERTY "WEST HALF-"HALF OF LOT." Where the owner of a tract of land divided it into lots and filed a plat showing that the boundary of the lots excluded the street, one who thereafter purchased half of a lot on the east side of the street, described in his deed merely as the "west half" of the lot, acquired one-half the length of the lot from the side of the street, the one-half of the street itself not being included as a part of his moiety, notwithstanding his contingent right of reversion under Mills' Ann. St. 1912, § 7221, providing that when any street or alley designated on the plat of any city or town or subdivision of, or addition to, any municipal corporation, shall be vacated, the fee of the lands included within the street or alley, and all right, title, or interest of the state and the municipal corporation, shall vest in the owners of the abutting lots to

the center of the street.

[Ed. Note. For other cases, see Dedication, Cent. Dig. §§ 35, 37-47; Dec. Dig. § 19.*

For other definitions, see Words and Phrases, vol. 8, p. 7432; vol. 4, pp. 3207, 3208; vol. 8, p. 7676.]

20*)-DESCRIPTION PROPERTY-BOUNDED BY STREET OR HIGH

WAY.

The rule that a conveyance of land described as bounded by a highway or street will be construed to mean the middle of such highway or street, unless such construction is contradicted expressly or by necessary implication, does not apply where the title to the street is in the government or municipality, or where the grantor is a corporation holding a street for public purposes and disposing of the adjacent lots for private use.

[Ed. Note.-For other cases, see Boundaries, Cent. Dig. §§ 123-130, 132; Dec. Dig. § 20.*]

Error to District Court, Jefferson County;

Charles McCall, Judge.

Action by Henry McDonald and another against William Kummer and another. Judgment for defendants, and plaintiffs bring error.

Reversed, with directions.

A. C. Pattee, of Edgewater, and William A. Dier, of Golden, for plaintiffs in error. Samuel W. Johnson, of Denver, for defendants in error.

or street through the center of said land running north and south one hundred and sixty (160) rods long by four (4) rods wide (east and west), said 5-acre tracts being twenty (20) rods fronting on said street by forty (40) rods deep (east and west). Said measurements running from the center of said street, but the above-described roadway being reserved for the said use forever. Signed at Golden, Colorado, this 5th day of December, A. D. 1887. [Signed] William G. Smith."

The plat shows the roadway or street, from north to south through the center of the tract with eight tracts or lots apparently of equal size on either side of the street, and numbered from 1 to 16, inclusive. The premises in question consist of lots numbered 1 and 2, lying on the east side of the dedicated street, called Center street; lot 1 being in the southeast corner of the tract, and lot 2 adjoining lot 1 on the north, the west end of both lots abutting on Center street. Plat and statement:

14

15

CENTER STREET

66 FEET WIDE

7

6

ما

147.5

3

DITCH

2

330 FT.

16

RAIL ROAD

-40

OWN LINE

TOWN-IN

SCOTT, J. This is an action to determine and settle a disputed boundary line. The case was tried on an agreed statement of fact. From this it appears that on the 5th day of December, 1887, one William G. Smith, who was then the owner of the premises involved, filed for record with the county clerk and recorder of Jefferson county his plat and statement duly acknowledged. This statement was as follows: "Know All Men by These Presents: That I have subdivided the east one-half (E. 2) of the southeast quarter (S. E. 4) of section thirty-four (Sec. By various mesne conveyances, the plain34), township three south (T. 3 S.), range tiffs in error, plaintiffs below, are the owners sixty-nine west (69) into five (5) acre tracts of the west half of lots 1 and 2, and the deas indicated below by the plat and survey fendants are owners of the east half of said made by E. L. Berthoud, and I have reserved lots. The plaintiffs' portions of these lots The plaintiffs claim for the use of the public forever, a roadway abut on Center street.