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competent." The following statement is es- ship, and as against those who do not consential to a comprehension of the point made nect themselves with the title such prior posand other questions raised by appellant: session gives a superior right, although the There was testimony tending to show that true title may be outstanding in a third peras early as 1874 (all the lands now owned son, or, as in the present case, in the governby plaintiff and defendant being then va- ment of the United States. One who, in cant, unoccupied, public lands of the govern- California, desires to appropriate the water ment of the United States) one Samuel Pau- of a stream upon the vacant and unapprobal settled upon the tract of land now owned priated public lands of the United States by the plaintiff, known as the "Paubal for a useful purpose, may do so by the conTract," and constructed a ditch from Paubal struction of a ditch or other medium of concreek to said tract of land, through which duit, and actually appropriating the water he diverted the water of said creek, and con- and conducting it to some point where it ducted the same to his house and land, can be utilized in fulfillment of such useful where he used it for domestic purposes and purpose; and by so doing he acquires, as for the irrigating of a small vineyard, fruit against all subsequent appropriators and trees, and several acres which he cultivated riparian proprietors acquiring title from in corn, peas, etc. Paubal continued to own the United States subsequent to such apand occupy the ditch until 1882 or 1883, propriation, the right to the quantity of when he died. Thereupon Luis Ardillo, a water thus appropriated, and an easement son-in-law of Paubal, without acquiring the of right of way into and over the public legal title thereto by any conveyance, took land traversed by his ditch or conduit so possession of said land and ditch, and con- constructed and used for such purpose. If tinued to possess, occupy, and use them, in- one animated by a like desire to appropriate cluding the water of said Paubal creek, water under like circumstances finds a ditch through said ditch, until 1887, when he con- already constructed to hand, takes peaceable veyed the land to one Magee, and the ditch possession thereof, and appropriates the and water right to plaintiff. Magee home- water for a like or similar useful purpose, steaded the place in 1887, commuted the he thereby acquires a like right as against same April 18, 1889, and received a patent all the world, except the true owner, or those therefor from the United States, dated Jan- holding under or through him. If nature uary 19, 1891. Magee conveyed the Paubal or art has furnished the medium of approtract of land to plaintiff October 2, 1889. priation, he may avail himself of the gift or Defendant owns land upon Paubal creek labor without being held liable to those above the land of plaintiff, upon which he having no interest therein, and in no wise filed his declaratory statement February 11, connected therewith. To the owner of a 1890, and entered the land at the United ditch thus possessed and used such approStates land office as a pre-emptor January priator must account until his possession 6, 1891, and received a patent therefor dated and user ripens into a title by prescription December 26, 1891. The head of plaintiff's or adverse user. His right in such case will ditch for say 240 feet is upon the land pat-depend for priority, as against other apented to defendant. In April, 1892, defend- propriators of water from the same stream, ant commenced the construction of a ditch upon the date of his possession and appro from Paubal creek to his land, completing it priation, and not upon the date of the orig. in the month of May following, which was inal construction of the ditch and appropriacapable of carrying 40 inches of water, meas- tion by some other person under whom he ured under a 4-inch pressure, and since that does not hold, and between whom and him. time has diverted the water of the creek self there is no privity of estate. His aptherein, whereby plaintiff has been depriv. propriation in such a case is a new and ined thereof. The theory of appellant is that, dependent one, and must stand or fall upon as Ardillo never succeeded to the title of its own merits. It follows that when Luis Paubal, the owner and constructor of the Ardillo, in 1882 or 1883, upon the death of ditch, he had no title which he could con- l'aubal, entered into possession of the laubal vey to plaintiff, and therefore that his deed ditch and land, appropriated the water of was inadmissible.

Paubal creek therein, and used the same It is true that upon the death of Paubal for domestic purposes and for irrigating the the legal title to his estate vested in his land, and continued such user until 1887, heirs, subject to administration, and the he thereby acquired a right thereto which rights and incidents connected therewith; he could convey to the plaintiff, and which, and the fact that the wife of Ardillo was unless lost by voluntary abandonment, was the daughter and heir, or one of the prior in time and superior in right to the heirs, of Paubal, did not give to her hus- claim of defendant to such water, which band, Ardillo, a right to convey the ditch did not vest in him as a riparian proprietor and water right. We are not, however, until 1890, and as an appropriator until 1892. called upon to consider the rights of the It follows that the deed from Ardillo to heir or heirs of Paubal, or any rights de- plaintiff was properly admitted in evidence. rived from or through them. Prior posses- It also follows, for like reasons, that the sion of real property is evidence of owner- evidence objected to by defendant, touch

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ing the taking of possession and user by plaintiff, but little water was used from the Ardillo of the ditch and land of Paubal, ditch for irrigation, and that the ditch bewithout a conveyance, was pertinent and came so obstructed by debris and vegetable proper. In this connection it is proper to matter that it would conduct but a small state that the finding of the court (No. 2), quantity of water. It was used, however, in which it is found that the plaintiff and all along to convey water for domestic purhis predecessors in interest have been the poses and to some extent for the purposes owners of the ditch in question since and of irrigation. The intention of the plaintiff during the year 1874, is erroneous. The evi- to retain his right was made plainly mani. dence showed that the ditch was constructed fest by requesting the defendant, who for by Paubal as early or earlier than 1874, but, some time was in the occupancy of the Pauas Ardillo did not connect himself with the bal tract of land, to keep the water running Paubal title, his right to the ditch cannot in the ditch; by his effort to sell the water receive any support therefrom, and had its right, and later, when he succeeded to the inception in his possession and user com- ownership of the Paubal tract, by planting mencing in 1882 or 1883. The error is tech- some 14 acres to olive trees, which could nical, could not harm the defendant, and is not be nurtured without the water from this not cause for reversal, for the reason that a ditch; and by his clearing out the ditch and finding that plaintiff and his predecessors running the water through it, except when bave been the owners of the ditch since and prevented by the acts of defendant. No during 1874 is tantamount to a finding that question of adverse possession or adverse they have been such owners at every mo- user for a period sufficient to constitute a ment of time during such period; and, as right arises in the case, and under the adjuthe evidence supports such finding since 1882 dications of this court in the cases cited, and or 1883, it fixes such ownership at a period many others of like tenor and effect, it is anterior by some seven years to the incep- not perceived how the court below could tion of any right in defendant.

with any propriety have found in favor of

an abandonment. The declaration of plainAbandonment.

tiff in his letter to defendant of April 20, Appellant contends that, if the plaintiff or 1893, in which he stated that "the difference his predecessors in interest ever had any between us is only one-sixth of the stream, irrigation water right in said ditch, it was worth about $200," and which is relied upon lost by abandonment. The right which is by appellant as proof that the plaintiff only acquired to the use of water by appropria- claimed one-sixth of the water, was fully tion may be lost by abandonment. To aban- explained by plaintiff, where he said he and don such right is to relinquish possession defendant were trying to compromise; that thereof without any present intention to re- he had offered to take two-thirds of the wapossess. To constitute such abandonment, ter, and in response defendant had proposed there must be a concurrence of act and in- that each take one-half of the water. This tent, viz. the act of leaving the premises would leave a one-sixth over which they difproperty vacant, so that it may be appropri- fered, and thereupon he suggested the folly ated by the next comer, and the intention of of a suit at law which would cost $1,000, not returning. Judson v. Malloy, 40 Cal. over a one-sixth which was worth but $200. 299; Bell v. Mining Co., 36 Cal. 214; Moon Nothing seems to have come of the attempt v. Rollins, Id. 333; St. John v. Kidd, 26 Cal. to compromise, and the evidence, if admissi272; Richardson v. McNulty, 24 Cal. 315; ble, was entitled to no weight. No estoppel Willson v. Cleaveland, 30 Cal. 192. The mere was pleaded, and none was proven. The intention to abandon, if not coupled with evidence as to the quantity of water approyielding up possession or a cessation of user, priated through plaintiff's ditch ranged from is not sufficient; nor will the nonuser alone, 1 inch to 100 inches. The court found 25 without an intention to abandon, be held to inches as the quantity to which Utt was entiamount to an abandonment. Abandonment tled, and this finding cannot be disturbed. is a question of fact to be determined by a The judgment and order appealed from jury or the court sitting as such.' Yielding should be affirmed, up possession and nonuser is evidence of abandonment, and, under many circumstan

We concur: HAYNES, C.; BELCHER, C. ces, sufficient to warrant the deduction of

PER CURIAM. For the reasons given in the ultimate fact of abandonment. But it

the foregoing opinion, the judgment and ormay be rebutted by any evidence which

cier appealed from are affirmed. shows that, notwithstanding such nonuser or want of possession, the owner did not intend to abandon. The finding of the court

(4 Ariz. 317) does not uphold the contention of appellant,

HAWKE r. WENTWORTH. and in this respect is correct. The most

(Supreme Court of Arizona. March 25, 1895.) that can be said in favor of an abandonment

DISMISSAL OF ACTION-County SUPERVISORS.is that for several years after the sale by

POWERS. Ardillo of the land to Magee, and the con- 1. Where the defendant in an action for the reyance of the ditch and water right to possession of a public office filed a cross complaint, claiming the right to possession, and al- pers, and records thereof, plaintiff, with the leging that plaintiff, after commencing the ac- aid of the sheriff of said county and other tion, ousted him of possession, it was proper to refuse to dismiss the action on plaintiff's motion, persons, forcibly and unlawfully entered and to proceed to trial on the cross complaint.

into the room or office of the clerk of the 2. Under Rev. St. tit. 62, providing for an board of supervisors, and expelled defend. action against one who usurps a public office, the board of supervisors of a county has no pow

ant therefrom, and took possession of said er to determine the title of one of its members

books, papers, and records, and plaintiff to, or his fitness for, the office of supervisor. since that date, September 8, 1893, has had

3. The board of county supervisors has no possession of said office, books, papers, and power to elect a successor to one of its resign

records. Defendant demanded judgment ing members, except conjointly with the probate judge, as prescribed by Rev. St. par. 388.

for the possession of said office, books, pa

pers, and records. The case coming on for Appeal from district court, Cochise coun

trial, plaintiff dismissed his complaint, and ty; before Justice R. E. Sloan.

the trial was had on defendant's cross comAction by Nat E. Hawke against A. Went

plaint, against plaintiff's objections, and worth. Judgment for defendant, and plain-judgment was entered for defendant, and tiff appeals. Affirmed.

from that judgment plaintiff appeaļs. This is an action by Hawke against Went

At the general election, 1890, Scott White worth for the office of clerk of the board of

was elected supervisor of Cochise county supervisors of Cochise county, under the for a term of four years, commencing Janprovisions of title 62 of the Revised Stat

uary 1, 1891, and duly qualified as such, utes. Plaintiff, after obtaining leave to in

and entered upon the duties thereof. At the stitute this action, on August 21, 1893, filed general election, 1892, W. K. Perkins and his complaint, alleging that on or about the James P. McAllister were elected super3d day of January, 1893, he was legally and visors of said county for terms of two years, properly elected and appointed to the office commencing January 1, 1893, and duly qual. of clerk of the board of supervisors of Co- ified and entered upon the discharge of the chise county, and duly qualified as such ac- duties thereof. McAllister, at the date of cording to law, and entered upon the duties his election, was the treasurer of said counof said office, and was in possession of said ty for a term ending December 31, 1892. office, and the books thereof, on the 6th of The board of supervisors on January 1, 1893, July, 1893; that, on the date last mention- was composed of Scott White, W. K. Pered, defendant, in collusion with James Reil- kins, and James P. McAllister.

On Janly and James P. McAllister, the said Reilly uary 3, 1893, the board duly elected and apand McAllister then and there unlawfully pointed Hawke, this plaintiff, clerk of the usurping the office of supervisors of said board of supervisors, and he immediately county, unlawfully and wrongfully assem- qualified as such, and entered upon the disbled at the courthouse, in said county, as a charge of the duties of said office. Immeboard of supervisors of said county, and diately after the election of plaintiff as then and there unlawfully elected and ap-. clerk, White and Perkins, as supervisors, pointed said defendant, Wentworth, to and Hawke, as clerk, refused to recognize plaintiff's said office of clerk of the board of "Allister as a member of the board of supervisors of said county; and that said supervisors, and McAllister applied to the defendant then and there did usurp and district court for a mandamus to compel the take possession of said office, and plaintiff said parties to recognize him as such officer. was excluded therefrom by defendant. To This suit he prosecuted to a successful terthis complaint defendant filed an answer mination in the district court. The defendin the nature of a cross complaint, averring ants appealed to this court, and said judg. that he was duly elected and appointed ment was affirmed. 36 Pac. 170. About clerk of the board of supervisors of Cochise January 9, 1893, White and Perkins passed county on July 7, 1893, and duly qualified as a resolution, and had it entered upon the such on that date, according to law, and minutes of the board of supervisors, declarthat on that date plaintiff had possession of ing, in effect, that McAllister was not a said office, and the books and papers there supervisor; and that there was a vacancy. of; that on that date he instituted suit in This vacancy they proceeded to fill by electthe probate court of said county against | ing one E. A. Nichols, who proceeded to plaintiff to recover the books, papers, and qualify and act as a supervisor. Thereaftrecords of said office, and that on the

er, on January 12th, White resigned, and day of July, 1893, judgment was rendered Perkins and Michols proceeded to elect one by said court in favor of defendant agaiust Frank Hare to fill the vacancy caused by plaintiff for the said books, etc., and that White's resignation. The board, as then thereafter, on the 13th day of July, under formed, consisted of Perkins, elected at the the proper writ from said court, duly ex- general election in 1892; Nichols, elected by ecuted by a proper officer, the said books, White and Perkins to fill a supposed va. papers, and records of said office were de- cancy by the removal of McAllister; and livered to defendant; that thereafter, on Hare, elected by Perkins and Nichols to fill September 8, 1893, while defendant was in the vacancy caused by White's resignation. possession of said office, and the books, pa- On July 6, 1893, after due notice to Perkins, McAllister and Monmonier, probate court as an action on behalf of defendant judge, met and elected James Reilly super- against plaintiff for said office, and a trial visor to fill the vacancy caused by White's thereon against plaintiff was proper;. parresignation. Reilly immediately duly qual- ticularly inasmuch as it was averred thereified according to law, and he and McAllis- in that plaintiff, after instituting the suit to ter entered the office of the board of super- try the title thereto by leave of the court, visors, where Perkins, Nichols, and Hare had taken the matter in hand, and by his own were then assembled as a board of super- illegal acts had taken possession of the office visors, with plaintiff as clerk. Reilly and before the right thereto could be heard and McAllister demanded of Perkins to be rec- determined on his complaint by the court. ognized by him as members of the board. 2. The board of supervisors on January 3, Perkins declining to do so, Reilly was 1893, consisted of Scott White, W. K. Perchosen chairman of the ‘board, and the kins, and James P. McAllister, all elected by board adjourned until the next day. On the people, the first at the general election the 7th of July the board met, Reilly and in 1890, and the other two at the general elecMcAllister being present, Perkins absent. tion in 1892. On the said 3d of January, The defendant was elected clerk of the board 1893, plaintiff was duly elected clerk of the of supervisors, and he duly qualified and board of supervisors. The clerk of the board entered upon the discharge of the duties of supervisors is elected by the board of suthereof. Defendant then instituted pro- pervisors. Rev. St. par. 390. The office of ceedings in the probate court against Hawke clerk of the board of supervisors is held at to gain possession of the books, papers, and the will of the board. They can remove one records of the office of clerk of the board of and appoint one at pleasure. Id. par. 3049. supervisors, obtained judgment, and was Plaintiff, therefore, could only hold his office put in possession thereof; and thereafter during the pleasure of the board of superplaintiff, with the aid of the sheriff, Scott visors. White, and other persons, took possession 3. White and Perkins, as members of the of the room or office of the clerk, and took board of supervisors, on January 9, 1893, de the books, papers, and records of said of- clared a vacancy existed in the board of fice, and, at the time of filing of said an- supervisors; that McAllister was not a memswer and cross complaint, plaintiff had pos- ber thereof; and they proceeded to elect E. session thereof. Judgment was entered for A. Nichols to fill said vacancy. In other defendant. From this judgment plaintiff words, they declared that McAllister was not appeals.

a supervisor, and filled the supposed vacancy

by electing Nichols. White and Perkins posHeney & Ford, for appellant. James Reilly

sessed no authority to pass on the question and Allan R. English, for appellee.

of McAllister's title to or qualifications for

the office. Those questions can only be deterROUSE, J. (after stating the facts). 1. / mined by the district court in proceedings inThe first question presented for our consider- stituted therein for that purpose. Rev. St. ation is the action of the district court in pro- tit. 62. The acts of White and Perkins in ceeding to the trial of the case on the answer the attempted removal of McAllister, and the or cross bill of defendant, after plaintiff had election of Nichols, were void, and McAllisdismissed his complaint. This suit was based ter did not thereby lose the office of superupon the provisions of title 62 of the Re- visor, and Nichols did not become a member vised Statutes, a statute giving a specific of the board of supervisors. It follows from right to try the title to an office. The mat- the above statement that Perkins and Nichter in controversy was "the title to the of- ols did not confer any right on Frank Hare fice of clerk of the board of supervisors.” At in their proceedings in electing him to the ofthe time of filing the complaint, plaintiff was fice of supervisor to fill the vacancy caused not in possession of the office. He sued to by White's resignation. Perkins and Megain possession. He forced defendant into Allister, after White's resignation, were the court on that issue. Defendant met the is. only members of the board of supervisors. sue by claiming he was in possession by The vacancy caused by White's resignation right, and that after being brought into court could only be filled by an election by the replaintiff had wrongfully re-entered and oust- maining supervisors and the probate judge. ed him. The title to the office was the mat- Rev. St. par. 398. No such election was held ter in dispute at the date the complaint to fill the vacancy until July 5, 1893. At was filed, and remained the matter in dis- that time McAllister and the probate judge, pute at the date of the trial. Rev. St. tit. 62. after having served notice on Perkins to atThe court did not err in refusing to dismiss tend for that purpose, elected James Reilly the action on plaintiff's motion, and in pro- supervisor. Reilly qualified according to law, ceeding with the trial to judgment on de- and then the board consisted of Perkins, Mcfendant's answer or cross complaint. The Allister, and Reilly. The board of supercross complaint contained facts constituting visors, as thus composed, on July 7, elected a cause of action against plaintiff for usurp- and appointed defendant clerk of the board ing the office of clerk of the board of super- of supervisors. This board had the power visors, and could be properly treated by the to remove plaintiff, and to appoint defendant. Id. pars 390, 3049. Defendant was the duly 2: Where a square in an addition platted elected and appointed clerk of the board of

in 1880 was shown on the map as a park, and supervisors from the 7th day of July, 1993,

the owner sold different lots to the public with

reference to the map, it is a sufficient acceptand as such entitled to the office, books, pa- ance of the dedication for park purposes that pers, and records of said office. It is not nec- in 1888 the city ordered the plaza" cleared up. essary that we should determine the effect of

3. The city is not precluded from claiming

land dedicated to the public for park purposes the acts of Perkins, Nichols, and Hare from

by the fact that, after the dedication, it assessed the date of White's resignation. Those acts, the land for municipal taxes. aside from the title of defendant to the office

Appeal from district court, Maricopa counof clerk of the board of supervisor's, are not

ty; before Justice R. E. Sloan. now in question, and may never come up for

Trespass by John M. Evans against J. W. consideration. During that period McAllister

Blankenship. Judgment for defendant, and was pressing his claim to the office of super

plaintiff appeals. Affirmed. visor in the courts, and had been successful. He had applied for and secured a writ of

W. H. Stillwell, for appellant. L. H. Chalmandamus to compel this plaintiff and as

mers, for appellee. sociates to recognize him. The issue presented by him had terminated in his favor, but BETHUNE, J. This is an action of tres. the remedy was withheld on the application pass instituted by plaintiff, the appellant here, for an appeal granted on plaintiff's appli- on the 13th day of June, 1891, against defendcation. Defendant, likewise, when entitled ant and appellee, who was the city marshal to the office of clerk of the board of super- of the city of Phoenix, for tearing away a visors, and the books, papers, and records fence erected by plaintiff around a tract of thereof, resorted to the courts for relief. Aft- land in what is known as "Neahr's Addition er the relief was granted, and he was placed to the City of Phoenix,” and claimed by plainin possession of the defendant's office, etc., tiff as his property in fee, under a deed from plaintiff, by force and without any legal or the executor of David Neahr, deceased, dat. authorized power, took possession of the de ed July 25, 1885. Defendant admitted tearfendant's office, books, papers, and records, ing away the fence, and justified as such city and, when defeated, resorted to an appeal, marshal, acting under the duties of his office. pending which be remained in office to the It is stipulated in this case, among other end of defendant's term of office. Under the things, that on the 5th day of October, 1875, circumstances, we feel that it is proper that one David Neahr became the owner in fee we should suggest that the judiciary, having simple of the N. E. 14 of section 7, township jurisdiction of the matters, should have used 1 N., range 3 E., Gila and Salt River Meridthe authority vested in it to prevent the con- ian, containing 160 acres, and that the land tinuance of the acts and conduct mentioned, in dispute in this action is a part of said quarto the end that the fair reputation of the peo- ter section; "that about the year 1880 said ple of a good county, for law and order, David Neahr, then being the owner of said would not have been tarnished, and the cred- quarter section of land, platted the same into it of the county would not have been im- lots, blocks, streets, and alleys"; and that paired, by the effect of the issuance of de- said David Neahr made sales of divers lots of mands against the county by two separate land in Neahr's addition to the city of Phoeboards of supervisors. We are satisfied that nix during his lifetime, reference being had the parties whose acts are declared to be il- to the map of one Patrick, a surveyor, for a legal were not actuated by any impure mo- more complete description of the property tives, other than a selfish personal and in- sold; "that said David Neahr died prior to dividual pride in each to not be outdone by April 25, 1884." an opponent.

The question in this case is whether or not

the lot of the land in dispute was dedicated BETIIUNE and HAWKINS, JJ., concur.

by Neahr in his lifetime as public square. BAKER, C. J., took no part in this case.

The land in dispute appears on a map (which

is a part of the record in this case) as a park (4 Ariz. 307)

laid out in walks, with a circle in the center,

and is in size double that of the surrounding EVANS v. BLANKENSHIP.

blocks or squares, which are cut up into lots, (Supreme Court of Arizona. March 9, 1895.)

and divided from each other and the land in DEDICATION OF LAND FOR PARK -- ACCEPTANCE

dispute by streets and alleys. There is no TAXATIOX BY CITY-EFFECT AS ESTOPPEL.

other designation given to this tract in dis1. Plaintiff's grantor platted certain land, and on the map thereof, made and recorded at

pute than that mentioned, except the figures the instance of his agent, the land in dispute "570" on its sides and "300" on its ends, and was laid out as a park, double the size of the sur

among the references on the margin of the rounding squares, and marked “Public Grounds,” and the street which, if extended, would have

map these words: “Public Grounds, 570run through itwas marked “Park Avenue. 300." This map, as the record shows, is a Lots sold in the addition by the grantor were copy of a map of Neabr's addition to the city conveyed with reference to the map. Ilcld that,

of Phoenix made by H. L. Patrick, a surthough the grantor afterwards offered the land in suit to the state for a capitol site, its dedication

veyor, on the 6th day of March, 1880, and to the city as a public square was complete. filed by him in the office of the county record

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