| ship, and as against those who do not connect themselves with the title such prior possession gives a superior right, although the true title may be outstanding in a third person, or, as in the present case, in the government of the United States. One who, in California, desires to appropriate the water of a stream upon the vacant and unappropriated public lands of the United States for a useful purpose, may do so by the construction of a ditch or other medium of conduit, and actually appropriating the water and conducting it to some point where it can be utilized in fulfillment of such useful purpose; and by so doing he acquires, as against all subsequent appropriators and riparian proprietors acquiring title from the United States subsequent to such appropriation, the right to the quantity of water thus appropriated, and an easement of right of way into and over the public land traversed by his ditch or conduit so constructed and used for such purpose. If one animated by a like desire to appropriate water under like circumstances finds a ditch already constructed to hand, takes peaceable possession thereof, and appropriates the water for a like or similar useful purpose, he thereby acquires a like right as against all the world, except the true owner, or those holding under or through him. If nature or art has furnished the medium of appropriation, he may avail himself of the gift or labor without being held liable to those having no interest therein, and in no wise connected therewith. To the owner of a ditch thus possessed and used such appropriator must account until his possession and user ripens into a title by prescription or adverse user. His right in such case will depend for priority, as against other ap competent." The following statement is essential to a comprehension of the point made and other questions raised by appellant: There was testimony tending to show that as early as 1874 (all the lands now owned by plaintiff and defendant being then vacant, unoccupied, public lands of the government of the United States) one Samuel Paubal settled upon the tract of land now owned by the plaintiff, known as the "Paubal Tract," and constructed a ditch from Paubal creek to said tract of land, through which he diverted the water of said creek, and conducted the same to his house and land, where he used it for domestic purposes and for the irrigating of a small vineyard, fruit trees, and several acres which he cultivated in corn, peas, etc. Paubal continued to own and occupy the ditch until 1882 or 1883, when he died. Thereupon Luis Ardillo, a son-in-law of Paubal, without acquiring the legal title thereto by any conveyance, took possession of said land and ditch, and continued to possess, occupy, and use them, including the water of said Paubal creek, through said ditch, until 1887, when he conveyed the land to one Magee, and the ditch and water right to plaintiff. Magee homesteaded the place in 1887, commuted the same April 18, 1889, and received a patent therefor from the United States, dated January 19, 1891. Magee conveyed the Paubal tract of land to plaintiff October 2, 1889. Defendant owns land upon Paubal creek above the land of plaintiff, upon which he filed his declaratory statement February 11, 1890, and entered the land at the United States land office as a pre-emptor January 6, 1891, and received a patent therefor dated December 26, 1891. The head of plaintiff's ditch for say 240 feet is upon the land patented to defendant. In April, 1892, defend-propriators of water from the same stream, ant commenced the construction of a ditch from Paubal creek to his land, completing it in the month of May following, which was capable of carrying 40 inches of water, measured under a 4-inch pressure, and since that time has diverted the water of the creek therein, whereby plaintiff has been depriv-propriation in such a case is a new and in ed thereof. The theory of appellant is that, as Ardillo never succeeded to the title of Paubal, the owner and constructor of the ditch, he had no title which he could convey to plaintiff, and therefore that his deed was inadmissible. It is true that upon the death of Paubal the legal title to his estate vested in his heirs, subject to administration, and the rights and incidents connected therewith; and the fact that the wife of Ardillo was the daughter and heir, or one of the heirs, of Paubal, did not give to her husband, Ardillo, a right to convey the ditch and water right. We are not, however, called upon to consider the rights of the heir or heirs of Paubal, or any rights derived from or through them. Prior possession of real property is evidence of owner upon the date of his possession and appropriation, and not upon the date of the original construction of the ditch and appropriation by some other person under whom he does not hold, and between whom and himself there is no privity of estate. His ap dependent one, and must stand or fall upon its own merits. It follows that when Luis Ardillo, in 1882 or 1883, upon the death of Paubal, entered into possession of the Paubal ditch and land, appropriated the water of Paubal creek therein, and used the same for domestic purposes and for irrigating the land, and continued such user until 1887, he thereby acquired a right thereto which he could convey to the plaintiff, and which, unless lost by voluntary abandonment, was prior in time and superior in right to the claim of defendant to such water, which did not vest in him as a riparian proprietor until 1890, and as an appropriator until 1892. It follows that the deed from Ardillo to plaintiff was properly admitted in evidence. It also follows, for like reasons, that the. evidence objected to by defendant, touch ing the taking of possession and user by Ardillo of the ditch and land of Paubal, without a conveyance, was pertinent and proper. In this connection it is proper to state that the finding of the court (No. 2), in which it is found that the plaintiff and his predecessors in interest have been the owners of the ditch in question since and during the year 1874, is erroneous. The evidence showed that the ditch was constructed by Paubal as early or earlier than 1874, but, as Ardillo did not connect himself with the Paubal title, his right to the ditch cannot receive any support therefrom, and had its inception in his possession and user commencing in 1882 or 1883. The error is technical, could not harm the defendant, and is not cause for reversal, for the reason that a finding that plaintiff and his predecessors have been the owners of the ditch since and during 1874 is tantamount to a finding that they have been such owners at every moment of time during such period; and, as the evidence supports such finding since 1882 or 1883, it fixes such ownership at a period anterior by some seven years to the inception of any right in defendant. Abandonment. Appellant contends that, if the plaintiff or his predecessors in interest ever had any irrigation water right in said ditch, it was lost by abandonment. The right which is acquired to the use of water by appropriation may be lost by abandonment. To abandon such right is to relinquish possession thereof without any present intention to repossess. To constitute such abandonment, there must be a concurrence of act and intent, viz. the act of leaving the premises or property vacant, so that it may oe appropriated by the next comer, and the intention of not returning. Judson v. Malloy, 40 Cal. 299; Bell v. Mining Co., 36 Cal. 214; Moon v. Rollins, Id. 333; St. John v. Kidd, 26 Cal. 272; Richardson v. McNulty, 24 Cal. 345; Willson v. Cleaveland, 30 Cal. 192. The mere intention to abandon, if not coupled with yielding up possession or a cessation of user, is not sufficient; nor will the nonuser alone, without an intention to abandon, be held to amount to an abandonment. Abandonment is a question of fact to be determined by a jury or the court sitting as such. Yielding up possession and nonuser is evidence of abandonment, and, under many circumstances, sufficient to warrant the deduction of the ultimate fact of abandonment. But it may be rebutted by any evidence which shows that, notwithstanding such nonuser or want of possession, the owner did not intend to abandon. The finding of the court does not uphold the contention of appellant, and in this respect is correct. The most that can be said in favor of an abandonment is that for several years after the sale by Ardillo of the land to Magee, and the conveyance of the ditch and water right to plaintiff, but little water was used from the ditch for irrigation, and that the ditch became so obstructed by debris and vegetable matter that it would conduct but a small quantity of water. It was used, however, all along to convey water for domestic purposes and to some extent for the purposes of irrigation. The intention of the plaintiff to retain his right was made plainly manifest by requesting the defendant, who for some time was in the occupancy of the Paubal tract of land, to keep the water running in the ditch; by his effort to sell the water right, and later, when he succeeded to the ownership of the Paubal tract, by planting some 14 acres to olive trees, which could not be nurtured without the water from this ditch; and by his clearing out the ditch and running the water through it, except when prevented by the acts of defendant. No question of adverse possession or adverse user for a period sufficient to constitute a right arises in the case, and under the adjudications of this court in the cases cited, and many others of like tenor and effect, it is not perceived how the court below could with any propriety have found in favor of an abandonment. The declaration of plaintiff in his letter to defendant of April 20, 1893, in which he stated that "the difference between us is only one-sixth of the stream, worth about $200," and which is relied upon by appellant as proof that the plaintiff only claimed one-sixth of the water, was fully explained by plaintiff, where he said he and defendant were trying to compromise; that he had offered to take two-thirds of the water, and in response defendant had proposed that each take one-half of the water. This would leave a one-sixth over which they differed, and thereupon he suggested the folly of a suit at law which would cost $1,000, over a one-sixth which was worth but $200. Nothing seems to have come of the attempt to compromise, and the evidence, if admissible, was entitled to no weight. No estoppel was pleaded, and none was proven. The evidence as to the quantity of water appropriated through plaintiff's ditch ranged from 1 inch to 100 inches. The court found 25 inches as the quantity to which Utt was entitled, and this finding cannot be disturbed. The judgment and order appealed from should be affirmed. We concur: HAYNES, C.; BELCHER, C. PER CURIAM. For the reasons given in the foregoing opinion, the judgment and order appealed from are affirmed. (4 Ariz. 317) HAWKE v. WENTWORTH. (Supreme Court of Arizona. March 25, 1895.) DISMISSAL OF ACTION-COUNTY SUPERVISORS-POWERS. 1. Where the defendant in an action for the possession of a public office filed a cross com plaint, claiming the right to possession, and alleging that plaintiff, after commencing the action, ousted him of possession, it was proper to refuse to dismiss the action on plaintiff's motion, and to proceed to trial on the cross complaint. 2. Under Rev. St. tit. 62, providing for an action against one who usurps a public office, the board of supervisors of a county has no power to determine the title of one of its members to, or his fitness for, the office of supervisor. 3. The board of county supervisors has no power to elect a successor to one of its resigning members, except conjointly with the probate judge, as prescribed by Rev. St. par. 388. Appeal from district court, Cochise county; before Justice R. E. Sloan. Action by Nat E. Hawke against A. Wentworth. Judgment for defendant, and plaintiff appeals. Affirmed. This is an action by Hawke against Wentworth for the office of clerk of the board of supervisors of Cochise county, under the provisions of title 62 of the Revised Statutes. Plaintiff, after obtaining leave to institute this action, on August 21, 1893, filed his complaint, alleging that on or about the 3d day of January, 1893, he was legally and properly elected and appointed to the office of clerk of the board of supervisors of Cochise county, and duly qualified as such according to law, and entered upon the duties of said office, and was in possession of said office, and the books thereof, on the 6th of July, 1893; that, on the date last mentioned, defendant, in collusion with James Reilly and James P. McAllister, the said Reilly and McAllister then and there unlawfully usurping the office of supervisors of said county, unlawfully and wrongfully assembled at the courthouse, in said county, as a board of supervisors of said county, and then and there unlawfully elected and appointed said defendant, Wentworth, to plaintiff's said office of clerk of the board of supervisors of said county; and that said defendant then and there did usurp and take possession of said office, and plaintiff was excluded therefrom by defendant. To this complaint defendant filed an answer in the nature of a cross complaint, averring that he was duly elected and appointed Iclerk of the board of supervisors of Cochise county on July 7, 1893, and duly qualified as such on that date, according to law, and that on that date plaintiff had possession of said office, and the books and papers thereof; that on that date he instituted suit in the probate court of said county against plaintiff to recover the books, papers, and records of said office, and that on the day of July, 1893, judgment was rendered by said court in favor of defendant against plaintiff for the said books, etc., and that thereafter, on the 13th day of July, under the proper writ from said court, duly executed by a proper officer, the said books, papers, and records of said office were delivered to defendant; that thereafter, on September 8, 1893, while defendant was in possession of said office, and the books, pa pers, and records thereof, plaintiff, with the aid of the sheriff of said county and other persons, forcibly and unlawfully entered into the room or office of the clerk of the board of supervisors, and expelled defendant therefrom, and took possession of said books, papers, and records, and plaintiff since that date, September 8, 1893, has had possession of said office, books, papers, and records. Defendant demanded judgment for the possession of said office, books, papers, and records. The case coming on for trial, plaintiff dismissed his complaint, and the trial was had on defendant's cross complaint, against plaintiff's objections, and judgment was entered for defendant, and from that judgment plaintiff appeals. At the general election, 1890, Scott White was elected supervisor of Cochise county for a term of four years, commencing January 1, 1891, and duly qualified as such, and entered upon the duties thereof. At the general election, 1892, W. K. Perkins and James P. McAllister were elected supervisors of said county for terms of two years, commencing January 1, 1893, and duly qualified and entered upon the discharge of the duties thereof. McAllister, at the date of his election, was the treasurer of said county for a term ending December 31, 1892. The board of supervisors on January 1, 1893, was composed of Scott White, W. K. Perkins, and James P. McAllister. On January 3, 1893, the board duly elected and appointed Hawke, this plaintiff, clerk of the board of supervisors, and he immediately qualified as such, and entered upon the discharge of the duties of said office. Immediately after the election of plaintiff as clerk, White and Perkins, as supervisors, and Hawke, as clerk, refused to recognize Allister as a member of the board of supervisors, and McAllister applied to the district court for a mandamus to compel the said parties to recognize him as such officer. This suit he prosecuted to a successful termination in the district court. The defendants appealed to this court, and said judgment was affirmed. 36 Pac. 170. About January 9, 1893, White and Perkins passed a resolution, and had it entered upon the minutes of the board of supervisors, declaring, in effect, that McAllister was not a supervisor; and that there was a vacancy. This vacancy they proceeded to fill by electing one E. A. Nichols, who proceeded to qualify and act as a supervisor. Thereafter, on January 12th, White resigned, and Perkins and Nichols proceeded to elect one Frank Hare to fill the vacancy caused by White's resignation. The board, as then formed, consisted of Perkins, elected at the general election in 1892; Nichols, elected by White and Perkins to fill a supposed vacancy by the removal of McAllister; and Hare, elected by Perkins and Nichols to fill the vacancy caused by White's resignation. On July 6, 1893, after due notice to Per kins, McAllister and Monmonier, probate judge, met and elected James Reilly supervisor to fill the vacancy caused by White's resignation. Reilly immediately duly qualified according to law, and he and McAllister entered the office of the board of supervisors, where Perkins, Nichols, and Hare were then assembled as a board of supervisors, with plaintiff as clerk. Reilly and McAllister demanded of Perkins to be recognized by him as members of the board. Perkins declining to do so, Reilly was chosen chairman of the board, and the board adjourned until the next day. On the 7th of July the board met, Reilly and McAllister being present, Perkins absent. The defendant was elected clerk of the board of supervisors, and he duly qualified and entered upon the discharge of the duties thereof. Defendant then instituted proceedings in the probate court against Hawke to gain possession of the books, papers, and records of the office of clerk of the board of supervisors, obtained judgment, and was put in possession thereof; and thereafter plaintiff, with the aid of the sheriff, Scott White, and other persons, took possession of the room or office of the clerk, and took the books, papers, and records of said office, and, at the time of filing of said answer and cross complaint, plaintiff had possession thereof. Judgment was entered for defendant. appeals. From this judgment plaintiff Heney & Ford, for appellant. James Reilly and Allan R. English, for appellee. 1. ROUSE, J. (after stating the facts). The first question presented for our consideration is the action of the district court in proceeding to the trial of the case on the answer or cross bill of defendant, after plaintiff had dismissed his complaint. This suit was based upon the provisions of title 62 of the Revised Statutes, a statute giving a specific right to try the title to an office. The matter in controversy was "the title to the office of clerk of the board of supervisors." At the time of filing the complaint, plaintiff was not in possession of the office. He sued to gain possession. He forced defendant into court on that issue. Defendant met the issue by claiming he was in possession by right, and that after being brought into court plaintiff had wrongfully re-entered and ousted him. The title to the office was the matter in dispute at the date the complaint was filed, and remained the matter in dispute at the date of the trial. Rev. St. tit. 62. The court did not err in refusing to dismiss the action on plaintiff's motion, and in proceeding with the trial to judgment on defendant's answer or cross complaint. The cross complaint contained facts constituting a cause of action against plaintiff for usurping the office of clerk of the board of supervisors, and could be properly treated by the court as an action on behalf of defendant against plaintiff for said office, and a trial thereon against plaintiff was proper; particularly inasmuch as it was averred therein that plaintiff, after instituting the suit to try the title thereto by leave of the court, had taken the matter in hand, and by his own illegal acts had taken possession of the office before the right thereto could be heard and determined on his complaint by the court. 2. The board of supervisors on January 3, 1893, consisted of Scott White, W. K. Perkins, and James P. McAllister, all elected by the people, the first at the general election in 1890, and the other two at the general election in 1892. On the said 3d of January, 1893, plaintiff was duly elected clerk of the board of supervisors. The clerk of the board of supervisors is elected by the board of supervisors. Rev. St. par. 390. The office of clerk of the board of supervisors is held at the will of the board. They can remove one and appoint one at pleasure. Id. par. 3049. Plaintiff, therefore, could only hold his office during the pleasure of the board of supervisors. 3. White and Perkins, as members of the board of supervisors, on January 9, 1893, declared a vacancy existed in the board of supervisors; that McAllister was not a member thereof; and they proceeded to elect E. A. Nichols to fill said vacancy. In other words, they declared that McAllister was not a supervisor, and filled the supposed vacancy by electing Nichols. White and Perkins possessed no authority to pass on the question of McAllister's title to or qualifications for the office. Those questions can only be determined by the district court in proceedings instituted therein for that purpose. Rev. St. tit. 62. The acts of White and Perkins in the attempted removal of McAllister, and the election of Nichols, were void, and McAllister did not thereby lose the office of supervisor, and Nichols did not become a member of the board of supervisors. It follows from the above statement that Perkins and Nichols did not confer any right on Frank Hare in their proceedings in electing him to the office of supervisor to fill the vacancy caused by White's resignation. Perkins and McAllister, after White's resignation, were the only members of the board of supervisors. The vacancy caused by White's resignation could only be filled by an election by the remaining supervisors and the probate judge. Rev. St. par. 388. No such election was held to fill the vacancy until July 5, 1893. At that time McAllister and the probate judge, after having served notice on Perkins to attend for that purpose, elected James Reilly supervisor. Reilly qualified according to law, and then the board consisted of Perkins, McAllister, and Reilly. The board of supervisors, as thus composed, on July 7, elected and appointed defendant clerk of the board of supervisors. This board had the power to remove plaintiff, and to appoint defendant. Id. pars 390, 3049. Defendant was the duly elected and appointed clerk of the board of supervisors from the 7th day of July, 1893, and as such entitled to the office, books, papers, and records of said office. It is not necessary that we should determine the effect of the acts of Perkins, Nichols, and Hare from the date of White's resignation. Those acts, aside from the title of defendant to the office of clerk of the board of supervisors, are not now in question, and may never come up for consideration. During that period McAllister was pressing his claim to the office of supervisor in the courts, and had been successful. He had applied for and secured a writ of mandamus to compel this plaintiff and associates to recognize him. The issue presented by him had terminated in his favor, but the remedy was withheld on the application for an appeal granted on plaintiff's application. Defendant, likewise, when entitled to the office of clerk of the board of supervisors, and the books, papers, and records thereof, resorted to the courts for relief. After the relief was granted, and he was placed in possession of the defendant's office, etc., plaintiff, by force and without any legal or authorized power, took possession of the defendant's office, books, papers, and records, and, when defeated, resorted to an appeal, pending which he remained in office to the end of defendant's term of office. Under the circumstances, we feel that it is proper that we should suggest that the judiciary, having jurisdiction of the matters, should have used the authority vested in it to prevent the continuance of the acts and conduct mentioned, to the end that the fair reputation of the people of a good county, for law and order, would not have been tarnished, and the credit of the county would not have been impaired, by the effect of the issuance of demands against the county by two separate boards of supervisors. We are satisfied that the parties whose acts are declared to be illegal were not actuated by any impure motives, other than a selfish personal and individual pride in each to not be outdone by an opponent. BETHUNE and HAWKINS, JJ., concur. BAKER, C. J., took no part in this case. (4 Ariz. 307) EVANS v. BLANKENSHIP. (Supreme Court of Arizona. March 9, 1895.) DEDICATION OF LAND FOR PARK ACCEPTANCETAXATION BY CITY-EFFECT AS ESTOPPEL. 1. Plaintiff's grantor platted certain land, and on the map thereof, made and recorded at the instance of his agent, the land in dispute was laid out as a park, double the size of the surrounding squares, and marked "Public Grounds,' and the street which, if extended, would have run through it, was marked "Park Avenue." Lots sold in the addition by the grantor were conveyed with reference to the map. Held that, though the grantor afterwards offered the land in suit to the state for a capitol site, its dedication to the city as a public square was complete. 2. Where a square in an addition platted in 1880 was shown on the map as a park, and the owner sold different lots to the public with reference to the map, it is a sufficient acceptance of the dedication for park purposes that in 1888 the city ordered the "plaza" cleared up. 3. The city is not precluded from claiming land dedicated to the public for park purposes by the fact that, after the dedication, it assessed the land for municipal taxes. Appeal from district court, Maricopa county; before Justice R. E. Sloan. Trespass by John M. Evans against J. W. Blankenship. Judgment for defendant, and plaintiff appeals. Affirmed. W. H. Stillwell, for appellant. L. H. Chalmers, for appellee. BETHUNE, J. This is an action of trespass instituted by plaintiff, the appellant here, on the 13th day of June, 1891, against defendant and appellee, who was the city marshal of the city of Phoenix, for tearing away a fence erected by plaintiff around a tract of land in what is known as "Neahr's Addition to the City of Phoenix," and claimed by plaintiff as his property in fee, under a deed from the executor of David Neahr, deceased, dated July 25, 1885. Defendant admitted tearing away the fence, and justified as such city marshal, acting under the duties of his office. It is stipulated in this case, among other things, that on the 5th day of October, 1875, one David Neahr became the owner in fee simple of the N. E. 4 of section 7, township 1 N., range 3 E., Gila and Salt River Meridian, containing 160 acres, and that the land in dispute in this action is a part of said quarter section; "that about the year 1880 said David Neahr, then being the owner of said quarter section of land, platted the same into lots, blocks, streets, and alleys"; and that said David Neahr made sales of divers lots of land in Neahr's addition to the city of Phoenix during his lifetime, reference being had to the map of one Patrick, a surveyor, for a more complete description of the property sold; "that said David Neahr died prior to April 25, 1884." The question in this case is whether or not the lot of the land in dispute was dedicated by Neahr in his lifetime as a public square. The land in dispute appears on a map (which is a part of the record in this case) as a park laid out in walks, with a circle in the center, and is in size double that of the surrounding blocks or squares, which are cut up into lots, and divided from each other and the land in dispute by streets and alleys. There is no other designation given to this tract in dispute than that mentioned, except the figures "570" on its sides and "300" on its ends, and among the references on the margin of the map these words: "Public Grounds, 570300." This map, as the record shows, is a copy of a map of Neahr's addition to the city of Phoenix made by H. L. Patrick, a surveyor, on the 6th day of March, 1880, and filed by him in the office of the county record |