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set up also a final adjudication of the rights of the parties in this regard. This point we deem it unnecessary to decide. Indeed, there is not enough in the record to determine that question properly. The only question is on the evidence, whether the findings and judgment of the district court are supported by the evidence. The case was tried without a jury, and the court found the issue of fact for the defendants, and decreed accordingly. The evidence is by many witnesses, and very conflicting. The evidence furnished by the plaintiff, standing alone, would entitle him to a decree in his favor, and the evidence of the defendants, standing alone, would entitle them to a decree in their favor. The court below was controlled by the evidence of the defendants in its findings and decree, and we cannot say that they are so clearly and manifestly wrong that this court would be justified as a matter of law in reversing the judgment. The court below, seeing the witnesses on the stand, their bearing and manner of testify. ing, and hearing them in open court, is better qualified to determine which is the right, when there is conflict, than this court, who only sees the testimony in the record. The rule is "that the verdict of a jury or the finding of a court, where there is conflict in the testimony, is not to be set aside by an appellate court, unless the findings are clearly and manifestly against right and justice." In this case we cannot say the findings of the court below should be set aside for that reason. Firman v. Bateman, 2 Utah, 268. This rule is so well settled that further authority need not be cited. A review of the testi. mony in this case would serve no useful purpose. The judgment is affirmed.

ZANE, C. J., and ANDERSON, J., concur. (7 Utah, 416)

COOK V. OREGON SHORT-LINE & U. N.
Ry. Co.

(Supreme Court of Utah. July 1, 1891.)

APPEAL FILING UNDERTAKING.

Since Comp. Laws Utah 1888, § 3636, requires an undertaking on appeal to be filed within five days after service of notice of appeal, in order to render the appeal effectual for any purpose an undertaking not filed within that time is a void, and not merely an insufficient, undertaking, and the supreme court cannot assume juris diction by allowing a new undertaking, under section 3650, which provides that "no appeal shall be dismissed for insufficiency of the undertaking, if a good and sufficient undertaking, approved by a justice of the supreme court, be filed in the supreme court before the hearing on motion to dismiss the appeal.

Appeal from district court, third district; C. S. ZANE, Chief Justice.

P. L. Williams, for appellant. C. S. Varian and Van Meter, for respondent.

MINER, J. This action was brought in the third district court to recover damages arising from the alleged negligence of the defendant in constructing, maintaining, and leaving the rails of its track projecting above the surface of public sidewalk and line of public travel on West Third street, in the city of Salt Lake, so that plaintiff, while walk

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ing along the said sidewalk on the evening of September 22, 1889, stumbled against the rails of such track, and broke her right arm, and was otherwise injured. On the hearing of the case the respondent's counsel contended that this court had no jurisdiction of the appeal from the order denying defendant's motion for a new trial, or from the judgment, on the ground that no undertaking on appeal was filed within the time prescribed by law. Rule 6 of this court requires the appellant to prepare and file 10 copies of a printed abstract of the record, etc., and that the abstract shall set forth the title of the cause, with the date of filing all papers in the court below embodied in the abstract, and a brief statement of the contents of each pleading and paper, and shall set forth fully the substance of the pleadings and evidence, if any, and the points relied upon for reversal of the case appealed from, and shall refer to the pages in the transcript where pleadings shall be easily found.

On an examination of the abstract in this case, we are unable to find that any notice of appeal was filed or served, or that any undertaking on appeal was filed or a deposit made, or that any motion for a new trial was made or denied, nor does it appear from what court the appeal is taken. This abstract is therefore clearly defective. On an examination of the transcript, it appears that judgment was entered October 29, 1890; motion for a new trial denied December 20, 1890; notice of appeal from the judgment, and also from the order denying defendant's motion for a new trial, was served and filed January 22, 1891; an undertaking on appeal from the judgment alone was filed January 28, 1891, six days after the notice of appeal was filed and served; and on April 22, 1891, after the transcript was filed, an undertaking on appeal from the order denying defendant's motion for a new trial was filed. The abstract and transcript are both silent as to how this second undertaking came to be filed; certainly, it cannot be claimed that it was filed within the time required by the stat ute; and if filed by permission of the court first obtained, and through inadvertence. it is none the less objectionable, as this court cannot confer jurisdiction upon itself by the making of a void order, and amending that which did not exist or was not capable of amendment. The first undertaking on appeal from the judgment was filed one day after the time had expired for filing the same, and was there. fore ineffectual for any purpose, under section 3636 of the Compiled Laws of Utah of 1888, which provides that an "appeal is ineffectual for any purpose, unless within five days after service of the notice of an appeal an undertaking be filed or a deposit of money be made with the clerk," etc. It was the same as if no undertaking had been filed, and there was nothing to amend by. It was not sufficient under section 3650, nor defective. It referred to the judgment appealed from, and was in all respects in conformity with the statute as for an undertaking on appeal from the judgment. The giving of this under

taking within the time prescribed by the statute was necessary to confer jurisdic tion on this court. The undertaking, filed April 22, 1891, on appeal from the order denying defendant's motion for a new trial, was not authorized by section 3650 of the Compiled Laws of 1888, which provides: "If the appellant fails to furnish the requisite papers, the appeal may be dismissed; but no appeal can be dismissed for insufficiency of the undertaking thereon if a good and sufficient undertaking, approved by a justice of the supreme court, be filed in the supreme court before the hearing upon motion to dismiss the appeal." This section does not authorize the giving of an undertaking in this court in the first instance, only when an insufficient undertaking has been given in the court below within the time prescribed by law, and then the defect in the form or condition may be amended or remedied by filing a new amended undertaking in this court, on approval of a justice of the supreme court. This could be properly authorized as an amendment of a defective and insufficient procceding, but no amendment of the first undertaking could be allowed here, because no undertaking had been given, and there was nothing to amend. The undertaking was not filed within the time required by the statute. It is therefore a nullity, as there was nothing for it to operate on. In this, no attempt was made to file an undertaking on appeal from the order denying defendant's motion for a new trial within five days after service of notice of appeal, nor until after the expiration of three mouths thereafter. The undertaking and appeal could not in any event be treated as an amendment to the undertaking on appeal from the judgment; nor does it purport to be so intended, but as an independent undertaking under another provision of the statute allowing appeals from an order denying defendant's motion for a new trial, and was filed three months after the right to appeal expired. To allow this undertaking to stand would be to allow a new appeal to be perfected after the time fixed by law, and contrary to the provisions of the statute. We are of the opinion that an undertaking on appeal must in all such cases be filed within five days after the notice of appeal is filed and served, and if this is not done the appeal is ineffectual for any purpose, and this court has no jurisdiction to hear or determine this cause on appeal, nor to allow a new or amended undertaking to be filed after the statutory time had expired for filing an undertaking on appeal, where no such undertaking has been filed within the time prescribed by the statute. This view is fully sustained by numerous decisions in the supreme court of California, under statutes like those of Utah, as well as by the courts of this territory. Paving Co. v. Bolton, (Cal.) 26 Pac. Rep. 650; Schurtz v. Romer, 81 Cal. 244, 22 Pac. Rep. 657; People v. Fennel, 4 Utah, 112, 7 Pac. Rep. 525, 648; People v. Gough, 2 Utah, 69; Reed v. Kimball, 52 Cal. 325; Franks v. Smith, 45 Mich. 326, 7 N. W. Rep. 906; Shaw v. Randall, 15 Cal. 385; Horn v. Volcano W. Co., 18 Cal. 143; Berniaud v. Beecher, 74 Cal. 618,

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1. Comp. Laws Utah 1888, § 3226, allows a defendant to set up a statement of any new matter constituting a counter-claim, and arising out of the transaction set forth in the complaint as a foundation of plaintiff's claim, or connected with the subject of the action. Held, in an action by a person who is forcibly ejected from premises by one who claims title to the land, for an injunction, and for damages for destruction of her buildings by defendant, that the latter cannot set off a claim for damages to buildings erected by her after her trespass, and destroyed by plaintiff on regaining possession under cover of the injunction, since the two trespasses are distinct, and evidence of plaintiff's trespass is inadmissible.

2. Nor is such evidence admissible for the purpose of showing plaintiff's animus, or as affecting her standing as a witness.

3. Where there are several requests to charge, and some of them are objectionable, an exception "to the charge as given, and to the refusal of the court to charge as requested," is too general.

Appeal from district court, first district; J. W. BLACKBURN, Justice.

Sutherland & Judd, for appellant. J. L. Rawlins, for respondent.

MINER, J. On August 5, 1889, the plaintiff filed her complaint, alleging ownership and possession of the premises described therein, together with the house and improvements thereon; and that about August 1, 1889, the defendant willfully and maliciously entered thereon, and tore down the said improvements, etc., to the plaintiff's damage of $1,000. On filing such complaint, an injunction was obtained as prayed for, restraining defendant entering upon said premises, or in any manner interfering therewith. The de. fendant's answer filed September 27, 1890, denies the allegations in the complaint, and alleges, by way of counter-claim, that she is the owner and in the possession of the premises described in the complaint, and has been for 15 years, subject to the paramount title of the United States therein; and that, after the injunction was allowed and served, the plaintiff entered upon and took possession of the premises in question, demolishing buildings and the fences thereon erected by the defendant, and thereby injured defendant in the sum of $500, and prayed for judgment, etc. This cause appears to be the last of a series of actions between the same parties growing out of the adverse right to this land, one of which is reported in 24 Pac. Rep. 528. It appears from the testimony given on the part of the plain tiff that she built a dwelling on the land in question in 1889, and fenced it; that she

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had occupied the building about eight months, when she was forcibly removed therefrom by the defendant and others on August 1, 1889, and the improvements she had made thereon were destroyed; that the defendant immediately took possession and built a building thereon, and fenced it, whereupon the plaintiff then commenced this suit, and obtained an injunction, under the cover of which plaintiff again took possession of the lot; whereupon the defendant's counsel offered to prove in her defense, under a counterclaim set up with the answer, that just after the plaintiff commenced this suit and obtained her injunction therein, and before the defendant's answer and counterclaim was filed, plaintiff took possession of the lot, and pulled down a building, previously erected thereon by the defendant, and erected one in its place, for which defendant sought to recover damages under her counter-claim in this action. The court refused the offer, and rejected the testimony, to which ruling the defendant alleged error.

Under section 3226 of the Compiled Laws of 1888, the defendant would be entitled to set up a statement of any new matter constituting a defense or counter-claim, existing in favor of the defendant, and against the plaintiff, between whom a several judgment might be had in this action, and arising out of the transaction set forth in the complaint as a foundation of the plaintiff's claim, or connected with the subject of the action, and prove the fact on the trial; but the matter set up and sought to be proven is clearly not a counter-claim, within the meaning of the statute. The facts alleged and sought to be proven was a distinct trespass, com. mitted by the plaintiff several days after the trespass, as alleged in the complaint, was committed by the defendant, and to hold that one trespass committed by one party, under such circumstances, could be counter-claimed or set off against another trespass committed by the other party, at any other time, would be a departure from the rule governing such cases. Pattison v. Richards, 22 Barb. 143; Barhyte v. Hughes, 33 Barb. 320; MacDougall v. Maguire, 35 Cal. 274. “Claims of damages from torts, when attempted to be enforced against causes for damages also arising from other torts, have, as a rule, been rejected;" and courts have adopted or assumed, as a general principle, that such cross-demand can never arise from the transaction set forth by the plaintiff as the foundation of the claim, especially when the trespass or torts are separate and distinct from each other, and not connected with the transaction, foundation, or subject of the action, or when the tort sought to be counter-claimed was not committed until after the cause of action was commenced wherein the counterclaim is made. Pom. Rem. § 790, p. 831; Shelly v. Vanarsdoll, 23 Ind. 543; Askins v. Hearns, 3 Abb. Pr. 184. The defendant may have an independent cause of action for the alleged trespass in tearing down her building, but it does not arise out of the transaction connected with the subject or foundation of the action, as al

leged in the complaint. Therefore there was no error in rejecting the testimony offered; nor do we think the testimony offered was competent, under this issue, for the purpose of showing the animus of the plaintiff, or as affecting her testimony, and standing as a witness. The plaintiff was in possession of the house at the time it was torn down by the defendant, and had been in actual occupancy of the same for several months. The fact that the defendant owned the ground or was entitled to the possession of it, or that plaintiff's possession was wrongful, would not justify her in using force in ejecting the plaintiff from the premises, or tearing down the building in which she dwelt, without legal process or warrant. If her possession was wrongful, it would have been an easy matter to have tested her right of posses. sion by legal means. The fact that the plaintiff regained possession of the premises under cover of the writ of injunction issued in this case, and then committed another trespass upon the property of the defendant, does not protect her from the legal consequences of her wrong-doing, nor justify another wrong on the part of the defendant.

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The charge of the court did not fully submit to the jury the theory of the defendant's case, but the main questions involved were substantially covered by the charge as given. The exceptions taken to the refusal of the court to charge as requested were not sufficiently specific. An exception to the charge as given, and to the refusal of the court to charge as requested," is too general, when several requests are proposed, and it appears that some of them are objectionable. Excep. tions to the charge given, or the refusal to charge as requested, should be specific enough to show what parts of it are regarded as erroneous, or how it injuriously affects the rights of the party complaining; and these exceptions should be made and pointed out before the verdict of the jury is reached, so that the judge may have an opportunity to correct any errors which he may have inadvertently fallen into during the hurry and perplexities of the trial. Geary .v. People, 22 Mich. 220; Pound v. Railway Co., 54 Mich. 13, 19 N. W. Rep. 570; People v. Garbutt, 17 Mich. 9: Prescott v. Patterson, 49 Mich. 622, 14 N. W. Rep. 571; Tupper v. Kilduff, 26 Mich. 397; Hicks v. Coleman, 25 Cal. 146; Robinson v. Railroad Co., 48 Cal. 425. Upon the whole record, we find no error sufficient to justify a reversal of the judgment. The judgment of the court below is affirmed, with costs.

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descending from the hills, without any definite channel, only in times of melting snow and ice. 2. Where water, owing to the hilly or mountainous configuration of the country, accumulates in large quantities from rains and melting snow, and at regular seasons descends through gullies or ravines upon the lands below, and in its onward flow cuts out through the soil a welldefined channel, which bears the unmistakable impress of the frequent action of running water, and through which it has flowed from time immemorial during such seasons, such a stream is to be considered a water-course, and governed by the same rules.

3. To make a valid appropriation of water, there must be some actual beneficial purpose, existing at the time, or contemplated in the future, as the object for which the water is utilized. The needs of the purpose for which the appropriation is made, is the limit to the amount of water which may be taken.

4. To effect the appropriation, any gulch, dry ravine, or depression in land may be used as a part of the ditch for conducting the water; and so may the lower portion of the same channel from which the water is taken.

5. Under the maxim of the law that whoever grants a thing is supposed also tacitly to grant that without which the grant would be of no avail, the right to the use of a ditch and water existing in favor of land conveyed by deed, and without which the land would be practically valueless, pass by such deed as appurtenances. (Syllabus by the Court.)

Appeal from circuit court, Wallowa county; JAMES A. FEE, Judge.

T. H. Crawford, for appellant. R. Eakin, for respondent.

LORD, J. This is a suit in equity, brought by the plaintiff to enjoin the defendant from diverting the waters of a certain stream commonly known as "Sheep Creek Ditch," and for damages. The waters of Sheep Creek ditch flow through the lands of the plaintiff and the defendant. The theory upon which the suit is predicated is that Sheep Creek ditch is an ancient and natural water-course, with well-defined banks and channels, to the uninterrupted flow of which the plaintiff is entitled as a riparian owner, and by the diversion of which he has already been damaged, and will be irreparably damaged, unless the defendant be restrained and enjoined. The facts alleged being denied, the defense set up was prior appropriation of the waters of Little Sheep creek by means of dam, ditches, and dry ravines, or draws, into what is commonly known as "Sheep Creek Ditch," for the purpose of irrigation, stock, and domestic uses. The legal aspect of the case involves an inquiry into (1) what constitutes a water-course; (2) the quantity of water to which an appropriation is restricted; and (3) the nature of the water-right which may pass as appurtenant to the premises conveyed.

Considering these in their order, the inquiry is, what is included within the term "water-courses?" When there is a living stream of water, within well-defined banks and channel, no matter how limited may be its flow of water, there is no difficulty in determining its character as a water-course; but when the stream is of that class which periodically or occasionally flows through ravines, gullies, hollows, or depressions in land, and by its flow assumes a definite channel, such as

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indicates the action of running water, there is often some difficulty of distinction. A water-course is defined by BIGELow, J., as "a stream of water usually flowing in a definite channel, having a bed or sides or banks, and usually discharging itself into some other stream or body of water." Luther v. Winnisimmet Co., 9 Cush. 174. It is "a living stream, with defined banks and channels, not necessarily running all the time, but fed from other and more permanent sources than mere surface water." Jeffers v. Jeffers, 107 N. Y. 651, 14 N. E. Rep. 316. The size of the stream is immaterial, but “it must be a stream in fact, as distinguished from mere surface drainage occasioned by freshets or other extraordinary causes; but the flow of water need not be constant." Pyle v. Richards, 17 Neb. 182, 22 N. W. Rep. 370. It is defined in Eulrich v. Richter, 37 Wis. 226, to be "a stream of water, usually flowing in a certain direction, in a regular channel, with bed and banks; but the water need not flow continually. The channel may be sometimes dry." "There must, however, always be substantial indication of the existence of a stream, which is ordinarily and most frequently a moving body of water. Weis v. City of Madison, 75 Ind. 253. “A water-course, says Mr. Angell, “consists of bed, bank, and water; yet the water need not flow continually, and there are many watercourses which are sometimes dry. There is, however, a distinction to be taken in law between a regular flowing stream of water, which at certain seasons is dried up, and those occasional bursts of water which, in times of freshets or melting of ice or snow, descend from the hills and inundate the country." Ang. WaterCourses, § 4. The distinction is, as HAWLEY, C. J., said, "that it is a flowing stream of water,-a water-course,-as distinguished from water flowing through hollows, gulches, or ravines only in times of rain or melting snow." Barnes v. Sabron, 10 Nev. 237. "Such hollows or ravines, said DIXON, C. J., "are not, in legal contemplation, water-courses. Hoyt v. City of Hudson, 27 Wis. 656. But, "if the face of the country is such," said WILLIAMSON, C.," as necessarily to collect in one body so large a quantity of water, after heavy rains and the melting of large bodies of snow, as to require an outlet, and if such water is regularly discharged through a well-defined channel which the force of the water has made for itself, and which is the accustomed channel through which it flows, and has flowed from time immemorial, such channel is an ancient natural water-course. Earl v. De Hart, 12 N. J. Eq. 280. "In a broken and bluffy region of country," said MITCHELL, J., "intersected by long, deep gullies or ravines surrounded by high steep hills or bluffs, down which large quantities of water from rain or melting snow rush with the rapidity of a torrent, often attaining the value of a small river, and usually following a well-defined channel, * such

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streams partake more of the nature of natural streams than of ordinary surface waters, and must, at least to a certain extent, be governed by the same rules." Mc

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Clure v. City of Red Wing, 28 Minn. 186, 9 N. W. Rep. 767. In Gibbs v. Williams, 25 Kan. 214, it is held, where surface water from rains and snow in a hilly country, seeks its outlet through a gorge or ravines, and by its flow assumes a definite channel, with well-defined banks, such as will present to the casual glance the unmistakable evidence of the frequent action of running water, and through which at regular seasons the water flows, and bas done so immemorially, such stream is a natural water-course. In West v. Taylor, 16 Or. 172, 13 Pac. Rep. 669, STRAHAN, J., said that "water which has accumulated from spring rains and melting snows, and which has flowed several miles between regular banks of a welldefined water-course, must be deemed a water-course. The conclusion to be deduced from these decisions is that a water-course is a stream of water usually flowing in a particular direction, with well-defined banks and channels, but that the water need not flow continuously,— the channel may sometimes be dry; that the term "water-course" does not include water descending from the hills, down the hollows and ravines, without any definite channel, only in times of rain and melting snow; but that where water, owing to the hilly or mountainous configuration of the country, accumulates in large quantities from rain and melting snow, and at regular seasons descends through long deep gullies or ravines upon the lands below, and in its onward flow carves out a distinct and well-defined channel, which even to the casual glance bears the unmistakable impress of the frequent action of running water, and through which it has flowed from time immemorial, such a stream is to be considered a water-course, and to be gov erned by the same rules.

2. In this state the doctrine of the right to water by prior appropriation for mining and irrigating lands has not been adopted or applied, except as the parties bave acquired their rights under the act of congress of 1866. Nor has there been any legislation by the state upon the subject. By the act of congress, the right to water by prior appropriation from the streams upon the public domain was recognized and established. "But the appropriation," said Mr. Justice FIELD, "is limited in every case, in quantity and quality, by the uses for which the appropriation is made." Atchison v. Peterson, 20 Wall. 514. The measure of the right of the first appropriation of the water, as to extent, follows the nature of the appropriation, or the uses for which it is taken. Ortman v. Dixon, 13 Cal. 38. The needs or the purpose for which the appropriation is made is the limit to the amount of water which may be taken. He can only appropriate so much as he needs for the given purpose. But the appropriation must be made for some beneficial purpose, presently existing or contemplated. Mr. Pomeroy says: "In order to make a valid appropriation of waters upon the public domain, and to obtain an exclusive right to the water thereby, the appropriation must be made with a bona fide present intention of ap

plying the water to some immediate useful or beneficial purpose, or in present bona fide contemplation of a future application of it to such a purpose, by the parties thus appropriating it. Pom. Rip. Rights, § 47. There must be some actual beneficial purpose existing at the time, or contemplated in the future, as the object for which the water is utilized. If the amount of the water appropriated is within the given beneficial purpose for which it was taken, no more than is necessary to irrigate the lands contemplated to be reduced to cultivation as soon as can be reasonably done, although more than can be beneficially used for the present, it is nevertheless a valid appropriation. While a settler cannot appropriate more water from the public domain than is necessary to irrigate his land, nor any to irrigate lands which be does not intend to cultivate, nor own, or hold by possessory title, to the exclusion of subsequent bona fide appropriators, yet he is not required, in order to make his appropriation valid, to beneficially use, the first years of his settlement, the full amount of water appropriated, when such amount is no more than is necessary to irrigate the lands he intends to subject to cultivation. His original appropriation may be made with refrence to the amount of water that is need. ed to irrigate the lands he designs to put into cultivation. This view is ably sustained in Barnes v. Sabron, 10 Nev. 243, by HAWLEY, C. J., who, after stating that the plaintiff's rights to the water are not dependent upon the amount beneficially used by him in the first year of his appropriation, proceeds to say: "He was only entitled to as much water, within his original appropriation, as was necessary to irrigate his land, and was bound, under the law, to make a reasonable use of it. No person can, by virtue of a prior appropriation, claim or hold any more water than is necessary for the purpose of the appropriation. Reason is the life of the law; and it would be unreasonable and unjust for any person to appropriate all the waters of a creek when it is not necessary to use the same for the purposes of his appropriation. What is a reasonable use depends upon the particular circumstances of each particular case. In this case the plaintiff should not be confined to the amount of water used by him in 1869 or 1870, nor his rights regulated by the number of acres he then cultivated. He did not cultivate more land because his team was poor,' and he 'had no money to hire help.' The object had in view at the time of his diversion of the water must be considered; in connection with the actual extent of his appropriation." As there must be an actual diversion of the water from its natural channel by means of a ditch or other structure to effect the appropriation, any dry ravine, gulch, or hollow in lands may be used for this purpose as a part of the ditch for conducting the water. Not only may these be used by the appropriator as a part of his ditch, but he may use the lower portion of the same bed or natural channel from which the water is taken. Pom. Rip. Rights, § 48. It is thus seen that, in

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