note to State v. Briggs, 7 L. R. A. (N. S.) 278. [4] While the quoted words used in the motion of plaintiff to strike out a certain allegation of the answer, taken alone, might bear the literal interpretation contended for by opposing counsel, still, when considered together with the allegations and prayer of the second amended petition, we think it was not intended as an election to proceed for the recovery of the difference between the real and the represented value of the land but as an assertion that the action was not for rescission. A motion, not an election, was the matter at hand, and the former should not be construed into the latter by reason of the mere use of some inapt language. The point is pressed that Wharton's insolvency was not proved. The record is illuminated, however, with his own explanation of his financial condition, which is quite sufficient, to convince one that a judgment against him would not add materially to the assets of its holder. Aside from this his present desire, intention, and ability to take the land for the price of the car were assiduously pressed upon the plaintiff by Starrett, who knew full well that at least no such desire or intention existed, and the mere matter of financial ability was only one element of the false pretense deliberately and successfully made. It is insisted that the plaintiff swore on cross-examination that but for Starrett's assurance when returning from McCracken that Wharton was good and would pay, he would not have made the trade, and hence that he could not have relied on the statements as to the value and character of the land. We do not think that this meant or was intended to mean that he was uninfluenced by the former representations, only that this last assurance, like the pleadings of the importunate widow, removed all further hesitation. [1] That a motion for a new trial filed at one term may be taken under advisement and granted at the succeeding term was decided in Life Ins. Co. v. Twining, 19 Kan. 349; Springfield Fire & Marine Ins. Co. v. Gish, Brook & Co., 23 Okl. 824, 102 Pac. 712. The trial court upon reconsideration concluded that the plaintiff's claim was supported by some evidence, and that the demurrer thereto had been improperly sustained, in which conclusion we find no error. The defendant is justified in complaining that the plaintiff's pleadings were more fertile in prolixity than in perspicuity, but we hardly think the remarkable ability shown in the numerous attacks and attempts to require clearness of theory and fixity of position demands the entire defeat of the plaintiff. 1. EXTRADITION (§ 32*)-INTERSTATE GROUNDS -REVIEW OF PROCEEDINGS. tice of a sister state seeks his discharge from Where an alleged fugitive from the jusarrest under a warrant issued by the Governor on extradition from the sister state, and the indictment accompanying the papers charged an offense committed in the sister state within the period of limitations, he could not avail himself of the fact that the copy of the indictment under which he was first arrested contained a clerical error so as to charge a crime barred by limitations. [Ed. Note. For other cases, see Extradition, Cent. Dig. §§ 36-38; Dec. Dig. § 32.*] 2. EXTRADITION ( 30*) — INTERSTATE — PERSONS SUBJECT TO EXTRADITION-FUGITIVE FROM JUSTICE. Where a husband and wife residing in Pennsylvania agreed to separate and he agreed that of a child of the marriage, and he made to make monthly payments for her support and the monthly payments for a time and prior to any default left the state, and while residing in a sister state failed to make the payments, he was not guilty of abandoning his wife in Pennsylvania, he was not a fugitive from justice from Pennsylvania, based on his failure to maintain his wife and child, and he could not be extradited at the request of the authorities of Pennsylvania. [Ed. Note.-For other cases, see Extradition, Cent. Dig. § 32; Dec. Dig. § 30.*] Application for writ of habeas corpus by F. H. Kuhns for his discharge from arrest Petitioner under an extradition warrant. discharged. Alfred Chartz, of Carson City, for petitioner. TALBOT, C. J. Petitioner seeks to be discharged from arrest under a warrant issued by the Governor of the state of Nevada on extradition papers from the state of Penn sylvania. Under copies duly authenticated by the signature of the president judge and clerk and seal of the court, and accompanying the requisition papers, it appears that in the court of quarter sessions of the peace for the county of Allegheny, state of Pennsylvania, on November 12, 1913, an indictment was returned charging that on the 1st day of April, 1913, the petitioner, at the county of Allegheny, did separate himself from and neglect to maintain his wife and minor child. Acting upon what is shown upon the face of these papers, and without taking testimony, the Governor of this state issued his warrant for the arrest and extradition of petitioner, and it is from this arrest and extradition warrant that he seeks to be released. Prior to the arrival of the extradition papers, the sheriff of Ormsby county arrested The order granting a new trial is affirmed. the petitioner after receiving a copy of the All the Justices concurring. indictment, which charged the desertion and For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes nonsupport of the wife and child to have been in the year 1900. Application was made to the district court for a writ of habeas corpus. It was contended that the offense, as shown by the copy of the indictment, was barred by the statute of limitations, and last Friday the district court ordered the discharge of the petitioner. [1] As the date given for the alleged offense in that copy of the indictment was evidently a clerical error, which does not appear in the copy of the indictment accompanying the extradition papers, this objection does not avail the petitioner in this proceeding, for he now seeks his discharge from the warrant of the Governor, issued upon the papers containing a duly certified copy of the indictment alleging the offense to have been committed on the 1st day of April, 1913. [2] From the evidence presented for our consideration, it appears without contradiction that on the 27th day of May, 1910, the petitioner and his wife entered into a written agreement to live separate and apart from each other, and for the payment by the petitioner of $50 per month in advance for the support of his wife and minor son, to the wife, who in addition received the rental of $20 per month or $15 per month from a dwelling house; that petitioner made the monthly payments under the agreement to and including the month of April, 1913, and that the last of these payments was made in advance for that month by check drawn by petitioner and dated April 1, 1913; that he has since failed to make the payments but has contributed a small amount toward the support of the minor son; and that prior to any delinquency in payments or failure to support, he left the state of Pennsylvania on the 29th day of March, 1913, and has not since returned there, and has resided in the state of Nevada since his arrival here on the 3d day of April, 1913. The indictment was found upon the testimony of the wife of the petitioner. In her detailed sworn "statement of circumstances of aggravation," accompanying the requisition papers, she states, among other things, that petitioner separated himself from her and his children on the 1st day of April, 1910, without reasonable cause, and has since that day refused to live with or make his home with her: that on or about the 30th day of March, 1913, the petitioner closed his office in the city of Pittsburg, where he was practicing as a specialist on the treatment of the eye, ear, nose, and throat for a number of years, and gave his accounts into the hands of a collection agency, and absolutely discontinued his business in the city of Pittsburg; and that ever since March 30, 1913, petitioner has willfully neglected to maintain her and their son, and that they are wholly dependent on their earnings for adequate sup. port, aside from the income of about $15 monthly rental from a piece of property In this proceeding disputed facts are not regarded as in any way controlling, and if these statements made in her affidavit may be considered as contradicting the direct evidence of the petitioner that he drew his check on the 27th day of March, 1913, dated the 1st day of April, 1913, for the payment in advance for April, according to the agreement for supporting her and the boy, which has been introduced in evidence, nevertheless the "statement of circumstances of aggravation" accompanying the papers does not show that there was any failure on his part to keep the agreement or to support her and the son until after he left the state of Pennsylvania, while according to his testimony and under the written agreement there was no default on his part for more than a month after his departure from that state. As the agreement of separation was in force, there was no abandonment of the wife. Any failure to support her or the son did not occur while petitioner was in the state of Pennsylvania. If, as contended, we are not to consider the undisputed evidence that the petitioner was not delinquent in performing the conditions of his contract and did not fail to support his wife and child until more than a month after he left the state of Pennsylvania, and that under the admitted facts no conviction could be obtained under the indictment, and that the holding and taking of the petitioner for trial would result in fruitless expense to the state of Pennsylvania and unnecessary hardship to petitioner, the question remains whether he is a fugitive from justice, subject to extradition, when it appears beyond dispute that he was not in the state of Pennsylvania at the time he is alleged by the indictment to have committed the misdemeanor there. A person while in one state may be guilty of the commission of a crime in another state, when he is operating with an agent or accessory there, as in Re Cook (C. C.) 49 Fed. 833, in which the accused was convicted of receiving deposits in an insolvent bank mostly owned by him in the state of Wisconsin while he was in Chicago, and the case of State v. Chapman, 6 Nev. 320, in which it was held that one of the accused persons who went to the state of California, and from there telegraphed his accomplices in the robbery when the treasure would be shipped, was properly convicted as an accessory before the fact in this state. There is no principle of the law relating to agency or accessory by which the petitioner can be held. He did not, with the assistance of any other person in Pennsyl vania, commit the offense charged after he came to Nevada. His acts in selling his furniture and placing his accounts with a collection agency before he left the state of Pennsylvania did not constitute or result in any crime. It has been held often that the court may hear testimony and discharge a person held In Ex parte Spencer, 34 Nev. 240, 117 Pac. 1, we heard testimony and discharged the petitioner because it appeared that he was not in the state of Illinois at the time he was alleged to have committed the offense there. disputed facts justify his release or show | it a condition precedent to the surrender of that he is not a fugitive from justice. Ex the accused that it be shown to him, by comparte Smith, 35 Nev. 80, 126 Pac. 655. petent proof, that the accused is in fact a In habeas corpus proceedings before the fugitive from the justice of the demanding Circuit Court of the United States for the state." District of Maryland, in Bruce v. Raynor, 124 Fed. 481, 62 C. C. A. 501, under an indictment for bigamy alleged to have been committed more than two years before the finding of the indictment in a state in which that offense is barred within two years unless the accused flees from justice, the petitioner was allowed to prove that he re mained in that state without being concealed for more than two years after the date of the alleged offense, and it was held that such evidence would not go to any matter of defense but tended to prove that the petitioner was not a fugitive from justice. In Ex parte Hose, 34 Nev. 91, 116 Pac. 417, we ordered petitioner surrendered to the authorities of the state of Pennsylvania under an information charging him with the crime of desertion by separating himself from his wife and minor child. We held that the warrant for the arrest and return of the petitioner in that case to answer for the crime of desertion was not objectionable as failing to set out an offense known to the laws of that state. ་ We have held that by lack of jurisdiction a resident of one of the counties of this state may not be taken for trial to another county in which he is charged with crime when the undisputed evidence shows that he was not in and did not commit any offense in the county in which he is accused. In Ex parte Raggel, 114 U. S. 651, 5 Sup. Ct. 1153, 29 L. Ed. 250, the court said: "The only question remaining to be considered relates to the alleged want of competent evidence before the Governor of Utah, at the time he issued the warrant of arrest, to prove that the appellant was a fugitive from the justice of Pennsylvania. Undoubtedly the act of Congress did not impose upon the executive authority of the territory the duty of surrendering the appellant, unless it was We have the highest regard for our great made to appear, in some proper way, that he was a fugitive from justice. In other sister state of Pennsylvania, and we do not words, the appellant was entitled, under the wish to obstruct the enforcement of her act of Congress, to insist upon proof that laws or the administration of justice in any We desire to show every he was within the demanding state at the commonwealth. time he is alleged to have committed the consideration for warrants and process iscrime charged and subsequently withdrew sued on her behalf which we would give or We doubt from her jurisdiction, so that he could not desire to have given to our own. be reached by her criminal process. The whether the petitioner would have been instatute, it is to be observed, does not pre-dicted for desertion if controlling facts, omitscribe the character of such proof; but that ted from the "statement of circumstances of the executive authority of the territory was aggravation," such as that the petitioner and not required, by the act of Congress, to cause his wife were living apart by written agreethe arrest of appellant and his delivery to ment and that he did not fail to keep that the agent appointed by the Governor of contract while in the state of Pennsylvania, Pennsylvania, without proof of the fact that had been made known to her authorities, and he was a fugitive from justice, is, in our we do not assume that it will longer be dejudgment, clear from the language of that sired to extradite or prosecute the petitioner when they become aware of the facts presented to this court, indicating that he was not guilty of the crime of desertion nor of any offense at the time alleged in the indictment nor while residing in that state. We feel assured that the state of Pennsylvania does not wish to proceed against any person when it becomes apparent that he is not guilty of the offense with which he has been charged, act. Any other interpretation would lead to the conclusion that the mere requisition by the executive of the demanding state, accompanied by the copy of an indictment or an affidavit before a magistrate, certified by him to be authentic, charging the accused with crime committed within her limits, imposes upon the executive of the state or the territory where the accused is found the duty of surrendering him, although he may be satisfied, from incontestable proof, that the accused had in fact never been in the demanding state, and therefore could not be said to have fled from its justice. Upon the executive of the state in which the accused is found rests the responsibility of determining, in some legal mode, whether he is a fugitive from the justice of the demanding state. He does not fail in duty if he makes In view of the undisputed facts indicated, we do not feel that it would be consistent with justice or the liberty guaranteed to the citizen by the Constitution to allow the petitioner to be taken to Pennsylvania for trial, and we do not believe that the rights of that state will be violated or her best interests be otherwise than subserved by the release of the petitioner. It appearing to the court that the petition-proceeding. The second of the above cases er is not a fugitive from justice, it is ordered was an equity proceeding for an injunction that he be discharged. to restrain alleged trespass by reason of the operation of the new ditch constructed over NORCROSS and MCCARRAN, JJ., COLcur. the right of way awarded in the condemna (18 N. M. 388) PUEBLO OF ISLETA v. TONDRE et al. SAME v. PICARD et al. (Supreme Court of New Mexico. Sept. 1, 1913. On Motion for Rehearing, Dec. 17, 1913.) (Syllabus by the Court.) 1. WATERS AND WATER COURSES (§ 128*) COMMUNITY ACEQUIAS-DIVERSION OF WA TER. Chapter 49, Laws of 1907, does not regulate community acequias constructed prior to the passage of the act as to the right to change the point of diversion from the stream into such acequias. [Ed. Note. For other cases, see Waters and Water Courses, Cent. Dig. § 143; Dec. Dig. 128.*] 2. EMINENT DOMAIN (§ 47*)-PROPERTY SUBJECT-COMMUNITY ACEQUIAS. Said chapter authorizes the enlarging of an old community acequia by condemnation proceedings. [Ed. Note. For other cases, see Eminent Domain, Cent. Dig. §§ 107-120; Dec. Dig. § 47.*] Roberts, C. J., dissenting. Error to District Court, Bernalillo County; before Justice Ira A. Abbott. Appeal from District Court, Valencia County; before Justice Mechem. Proceedings by Frederick Tondre and others against the Pueblo of Isleta to establish a ditch, and suit by the Pueblo of Isleta against J. A. Picard and others. Judgment for plaintiffs, in the first action, and defendant brings error. Decree for defendants in the second action, and plaintiff appeals. Af tion proceedings above referred to. The claims of the plaintiff in error in the first action and the appellant in the second action are based in each instance upon a single proposition, which may be stated as follows: That by reason of the provisions of chapter 49 of the Laws of 1907 it became necessary to apply for and obtain a permit from the then territorial (now state) engineer to change the point of diversion of water from any natural stream in the state into any irrigating ditch, and the defendants in error and appellees, having obtained no such permit, were not authorized to maintain condemnation proceedings, or change the point of diversion of water from the Rio Grande, and were consequently trespassers in all of their acts. It appears that both the plaintiff in error and appellant and the defendants in error and appellees are, and have been for many years past, appropriators of water for the purpose of irrigation from the Rio Grande river. The headgate of the ditch of defendants in error had been washed away by a change in the banks of the Rio Grande, and it became necessary for them to seek a new headgate, together with a considerable length of ditch from the new point of diversion, in order to be able to use the water for the purposes required. It is contended by counsel for plaintiff in error that the Legislature had not only the power to regulate the right to the use of the waters of the state by persons who had acquired water rights long prior to the passage of the act above mentioned, but that it did not in said act in terms provide for such regulation. It is argued by counsel for appellee that a fair construction of the terms Francis C. Wilson, of Santa Fé, for plain-of the act shows that it speaks prospectivetiff in error and appellant. Frank W. Clan-ly from the date of its passage, and was cy, of Santa Fé, for defendants in error and never intended to and does not apply to water appellees. firmed. PARKER, J. Both of the above cases involve the same questions, and will be considered together, as was done by counsel for the respective parties in their briefs. The first of the above cases involves the validity of a proceeding for the condemnation of a right of way for an irrigation ditch through the lands of the plaintiff in error. The condemnation proceedings were instituted by the defendants in error for the purpose of securing a right of way and a headgate, taking the water from the Rio Grande river at a point of diversion different from that which had formerly been employed for that purpose. The proceedings resulted in the condemnation of the land and the payment into court of the amount awarded in that rights acquired prior to the passage of the act, or to the means of enjoying the same. It becomes necessary, therefore, to examine the act as a whole, and to determine the legislative intent therefrom, there being some little obscurity in the same. The title of the act is as follows: "An act to conserve and regulate the use and distribution of the waters of New Mexico, to create the office of territorial engineer, to create a board of water commissioners, and for other purposes." Section 12 of the act provides that the territorial engineer shall have the supervision of the apportionment of water in this territory according to the licenses issued by him and his predecessors and the adjudications of the courts. This section would seem to limit the jurisdiction of the territorial engineer to such water rights as had been acquired under licenses issued by, not purport to modify the terms of section him or his predecessors. Section 13 provides 25 of the act. The only direct application of for the division of the state into water dis- the chapter to prior existing rights occurs in tricts, and section 14 provides that after such section 59, which is as follows: "Nothing condivision, upon the application of a majority tained in this act shall be construed to imof the water users of any district, the state pair existing vested rights, or the rights and engineer may appoint a water master for priorities of any person, firm, corporation or such district, who shall have charge of ap-association, who may have commenced the portionment of waters in his district. These two sections would seem in no way to refer to old established water rights or community acequias, but to speak to the future and to provide for a condition of affairs to be brought about by the districting of the state under the supervision of the territorial engineer. construction of reservoirs, canals, pipe lines or other works, or who have filed affidavits, applications or notices thereof for the purpose of appropriating for beneficial use, any waters as defined in section 1 of this act, in accordance with the laws of the territory of New Mexico, prior to the passage of this act: Provided, however, that all such reservoirs, canals, pipe lines or other works and the rights of the owners thereof shall be subject to regulation, adjudication and forfeiture for abandonment, as provided in this act." At first glance it might seem that this section expressly subjects all prior rights to regulation in accordance with the terms of the chapter; but a more careful examination of the section leads, we think, to the opposite conclusion. It is seen that two classes of rights are mentioned in the sec tion, viz., "existing vested rights," or "the rights and priorities of any person, firm, corporation or association, who may have commenced the construction of reservoirs, canals, pipe lines or other works, or who have filed affidavits, applications or notices thereof." Then follows the proviso which applies the feature of regulation to those Until the same had been done it would seem to confer no power and require no duty of the state engineer in regard to the use of any water right. Section 19 provides for a hydrographic survey of each stream system in the state, and section 20 provides for the filing with the Attorney General of the data so accumulated and, at the request of the state engineer, to require the Attorney General to bring suit on behalf of the state for the determination of all rights to the use of water in such system. These two sections also speak to the future, and have no application to water rights acquired prior to the passage of the act and the means of enjoying the same. Section 24 of the act requires every applicant intending to acquire the right to the beneficial use of any of the public waters of the state to make application to the state engineer for a permit to appropriate the same, and the works to be employed for such purpose are to be subject to the approv-"reservoirs, canals, pipe lines, or other works al of the state engineer. This section requires the applicant or proposed appropriator of water to furnish the state engineer with plans and specifications of the proposed works. Section 25 further deals with the detail of the data required to be furnished to the state engineer by the proposed appropriator, and provides that the plans of construction may be amended with the approval of the state engineer, and contains the following proviso: "Provided, further, that a change in the proposed point of diversion of water from a stream shall be subject to the approval of the territorial engineer, under the provisions of section 45 hereof, and shall not be allowed to the detriment of the rights of others having valid claims to the use of water from said stream." [1] Counsel for plaintiffs in error rely much on this proviso, and argue that it was intended to apply to all ditches, regardless of when the same were constructed, or the right to appropriate the water was acquired. We do not so understand the provisions of sections 24 and 25. They speak entirely of water rights to be acquired by means of filing a petition with the state engineer, and do not in terms, nor do we think in intent, attempt to deal with any ditches or water rights acquired before the passage of the act. Section 45, referred to in the proviso, does and the rights of the owners thereof" only, and omits to mention the first class of rights above pointed out. In determining the meaning of this section, and the scope of the application of the regulation feature, resort should be had to the then existing legislation. We had, at the date of the passage of the act in question, chapter 102, Laws of 1905. Section 19 of that act required notice or application to be made to the territorial engineer, which office was first created by that act, by "all persons, associations, or corporations who shall desire to construct any dam or dyke, for the purpose of storing, appropriating or diverting any public waters," and required them to submit plans and specifications of the proposed works. The section contains two provisions. The first is to the effect that if the proposed works are, in the opinion of the territorial engineer, not of sufficient importance to have the provisions of the section applied to them, he might suspend the operation of the section, and in case of works of great importance, where life or property would be in danger by the failure of such works, the territorial engineer might require certain precautions therein mentioned to be taken by the persons proposing to construct the works. The second proviso excludes from the operation of the section all works requiring the expendi |