[5] The evidence shows that this change was made. In June, 1899, Gould and others formed the defendant corporation and Gould at once transferred to it all his remaining interest in said 1675 acre tract for the irrigation of which the pumping plant was erected and also all his interest in said irrigation system and works and in the contracts made by Gould with purchasers of lots, in consideration whereof the company undertook to carry on the pumping plant and irrigation system and perform the existing obligations of Gould relating to the land and water rights thereto belonging. This, the company thereupon and thereafter proceeded to do. Gould was its manager. At the time of the transfer to the company the water rate fixed by the agreements was, so far as shown, $1.50 an acre for each irrigation. In August, 1899, at the instance of the defendant, steps were taken to have the company's water rates established by the board of supervisors of the county, as provided in the act of March 12, 1885 (Stats. 1885, 95). In pursuance of section 3 of that act, the defendant and twenty-five persons who were inhabitants and taxpayers of the county signed and filed with the board of supervisors a petition to have the board, to quote the language of the petition, "regulate and control the rates and compensation to be collected by the Soledad Land and Water Company, a corporation, whose works are located about two miles west of the town of Soledad, in said Monterey county, at which place said company has appropriated water for irrigation, for sale, rental and distribution of said water by said corporation". In pursuance of this petition, after due notice, an ordinance was duly passed by the board fixing the rates to be charged and rules of service to be observed by the defendant in the operation of its irrigation system. This ordinance has ever since remained in force. This statute applies only to persons and corporations engaged in the sale, rental or distribution of water for public use. By applying for this regulation the defendant, in effect, admitted that it was a public service corporation, administering a public use, and that the water it pumped and distributed was dedicated to public use. It immediately conformed to the rates and rules so established and continued to do so until December, 1905, a period of six years. It appears that the water plant and system was constructed and operated to obtain water for the irrigation of the forty-seven lots into which said tract of 1675 acres was subdivided. The plaintiff and Kelly, his grantor, have acquiesced in this change in the character of the use and in the rates and rules established by the board. There is evidence tending to show that all the other owners of lots in said tract likewise acquiesced therein. The judgment herein is, of course, without force as to other lot owners, but the evidence of acquiescence supports the finding that defendant is supplying a public use, instead of the original private rights. There is also evidence that the defendant made sales of water occasionally, when it could be spared, for lands outside of the 1675 acre tract. This evidence also aids the conclusion that the prior use, whatever its character, has been converted into a public use for the benefit of all the lands within said tract that are suitable for irrigation and under the flow of the ditches and in

convenient distance therefrom, and that plaintiff is entitled to the use of the water on payment of the rates so established.

There is evidence that in December, 1905, the defendant made and entered on its minutes a resolution purporting to fix rates and rules for the sale and delivery of its water different from those fixed by the board of supervisors, that thereafter it did not conform to the rates and rules of the board, and that in 1909 it again attempted to declare its own rates; also that in 1910 it changed its articles of incorporation so as to make them declare that it was organized for the purpose of supplying water "as a private corporation and not as a public water company, for private use and not for public use", and that its stockholders should have a preferred right to the water. The original articles declared that the company was formed to supply water and sell the same for irrigation. This would empower it to do this business for either a private use or a public use, at its option. It is claimed that by reason of its conduct it has changed its character, as well as the use, and is not bound to continue the service as for a public use. It is obvious that if the water had become dedicated to public use in 1905, it was not within the power of the defendant, as purveyor or owner thereof, to revoke the dedication and convert it into a private use. This cannot be done in any case without the consent, express or implied, of all the beneficiaries of the use. Such consent was not shown. The point is settled by the decisions of this court in Leavitt v. Lasse. Irr. Co., 157 Cal. 89, and Fellows v. Los Angeles, 151 Cal. 64.

[6] The objection is made that is was not shown that the signing or filing of the petition to the board of supervisors was authorized by the defendant company. No resolution of the board of directors authorizing it appeared in its minute book. But the petition was signed by the sec retary of the company in his official character as such and the testimony of Gould, who was the organizer and at the time the manager of the company, was that "steps were taken by the company to have the board of supervisors establish rates for the sale, rental and disposition of that, water," and that when this was done the company conformed to the rates established by the supervisors. As before stated, this continued until 1905. think this shows that the company authorized the signing and filing of the petition.

compel the

We

The

[7] The cause was tried upon an amended complaint. original complaint stated the facts substantially as set forth in the amended complaint, but the prayer thereof was for a writ of mandate. It was, in effect, a proceeding in mandamus, under sections 1084 and 1097 of the Code of Civil Procedure, to defendant to deliver water to plaintiff's land on payment of the established An alternative writ of mandate was issued and served on the defendant. A demurrer to the complaint was thereafter sustained and thereupon, on leave of court, the amended complaint was filed changing the prayer so as to present an action to have it adjudged that plaintiff is entitled to receive water from the defendant from its plant, that defendant is in charge of a public use in the water

rates.

for plaintiff's benefit and for damages for the injury from its previous refusal to supply said water. The defendant objected to this change of the character of the case and moved to strike the amended complaint from the files, on the ground that it was a departure and stated an entirely new cause of action. [8] We are of the opinion that, under our system of procedure, it is irregular to change a proceeding in mandamus to an action for equitable relief or for the recovery of damages, by an amendment of the complaint. In this case, however, the facts necessary to support the prayer of the amended complaint were alleged in the original complaint. The case has been tried on the theory that it was an action for equitable relief and for damages and not a special proceeding in mandamus. It does not appear, and it is not asserted, that the defendant was in any manner inconvenienced or hampered in the presentation of the evidence or in the conduct of the case by the change in its character. The difference in the relief sought is slight. Even in mandamus the plaintiff could have recovered the damages here asked. (Code Civ. Proc., sec. 1095.) The difference in the form of the action is technical in character and we cannot perceive that the defendant has suffered substantial injury by the change, or by the conduct of the court below in permitting it.

for reversing the judgment. VI, sec. 42.)

The error is, therefore, not good cause (Code Civ. Proc., sec. 475; Const., art.

The objection that the evidence does not support the judgment for damages is not well taken. We cannot enter into the question of the credibility of the witnesses. The values given by them to the crops of alfalfa which the evidence shows the land would have produced if defendant had supplied water when demanded, after deducting the cost of production, are sufficient to show the damages allowed.

Crim. No. 1918. In Bank. May 24, 1915.

Ex Parte GEORGE MCDONOUGH, on Habeas Corpus. [1] ATTORNEY AND CLIENT-DEFENSE OF PERSONS INDICTED FOR ELECTION FRAUDS-NAME OF EMPLOYING CLIENT-NAME OF CLIENT FURNISHING BAIL MONEY-REFUSAL TO DIVULGE TO GRAND JURYPRIVILEGED COMMUNICATION.-An attorney at law who has been retained to represent certain persons in connection with any and all investigations that were being made or that might be made as to their participation in certain alleged election frauds and violations of the election laws, cannot be compelled, without their consent, to testify before the grand jury as to whether or not he was employed by them to defend certain other persons who had been indicted by the grand jury for participation in such election frauds, or whether or not they furnished the bail money which he deposited for their release, as such questions called for "com

munications" received by the attorney from his client, concerning which he cannot testify without the client's consent under the provisions of subdivision 2 of section 1881 of the Code of Civil Procedure.

[2] ID.-NAME OF CLIENT-RIGHT OF ATTORNEY TO DISCLOSE-RULE IN APPLICABLE.-The rule that an attorney is not privileged from disclosing by whom he was employed is inapplicable to such a case, as the sole purpose of such questions was to obtain proof of admis sions of the clients tending to show complicity in the very crimes on account of which the attorney had been employed to defend them.

Application for Writ of Habeas Corpus prayed to be directed against Frank Barnet, Sheriff of Alameda County.

For Petitioner A. L. Frick and Burton Jackson Wyman. For Respondent-W. H. L. Hynes, District Attorney; Walter J. Burpee, Chief Deputy District Attorney.

Petitioner, an attorney at law, was retained by one Woolley and one Gorman to represent them as their attorney in connection with any and all investigations that were being made or that might be made as to their participation in certain alleged election frauds and violations of the election laws in Alameda county. claimed to have been committed in connection with the general primary election of August 25, 1914, and he has ever since been acting as their attorney in pursuance of such employment. Subse quent to such employment one Higgins, one Gale and one Wiles were indicted by the grand jury of that county, charged with participation in said crimes alleged to have been committed in connection with such election. Petitioner appeared as the attorney of each of such men, and has ever since acted for them, having admittedly been employed to represent them. He deposited $10,000 cash bail for the release of Higgins. Subsequently the grand jury of Alameda county, in the further investigation of said frauds and crimes, procured the attendance of petitioner as a witness, and while he has finally answered many questions put to him, he has steadily refused to answer such questions as these, viz.:

Q. Who employed you to represent Higgins et al.?

Q. Did Jack Woolley or Grant Gorman employ you to repre sent Higgins et al.?

Q. Did Jack Woolley or Grant Gorman furnish the $10,000 which you deposited as bail for Higgins?

Q. Who furnished the $10,000 deposited as bail for Higgins? For his refusal to answer these questions after being ordered to do so by the superior court, petitioner has been adjudged guilty of contempt of court and ordered confined in the county jail of Alameda county until he does answer them.

Admittedly the purpose of the questions is to obtain evidence against Woolley and Gorman, by which they can be implicated as principals in the commission of the crimes for which Higgins et al. had been indicted, and to implicate them in the commission of the election frauds.

The court below found that all the allegations of petitioner's affidavits filed in the contempt proceedings are true. These affidavits averred substantially, among other things, the following: Each and every communication, either verbal, written or by signs,

which he had received from either Woolley or Gorman in any way, relating to or concerning or about the said frauds, or the charges on which Higgins et al. were indicted, or with reference to the defense or bail of either said Higgins or said Wiles or said Gale, were received by him as the attorney for said Woolley and as the attorney for said Gorman, and not otherwise. That the $10,000 deposited as bail for Higgins was delivered to him by a client of his, which client had previously employed him to represent him, said client, in all investigations which were being or might be made of said client's conduct in connection with said alleged election frauds and in connection with Higgins et al., and to represent him in all matters and things growing out of the alleged election frauds in which it was or might be claimed that said client was implicated, and in any proceedings whereby it might be sought to ascertain whether the said client was connected with the commission of these crimes or not. That clients employed him to represent Higgins et al. and that these clients had previously employed him to represent them in connection with all charges which might be brought against them in connection with said frauds, and in reference to any claim that might be made that these clients had in any way been connected with these frauds, and that it was in connection with such employment by said clients to act as their attorney, and not otherwise, that these clients employed him to represent Higgins et al. That neither the unnamed clients nor Woolley nor Gorman consented to his testifying.

The question presented is whether the employment of petitioner by his clients to defend Higgins et al. and the furnishing by his clients of the sum of $10,000 to bail out Higgins were matters concerning which he cannot testify without the consent of such clients. Section 1881 of the Code of Civil Procedure provides: "There are particular relations in which it is the policy of the law to encourage confidence and to preserve it inviolate; therefore, a person cannot be examined as a witness in the following cases: 2. An attorney cannot, without the consent of his client, be examined as to any communication made by the client to him, or his advice given thereon in the course of professional employment."

However desirable it may be to obtain proofs sufficient to insure the conviction of all persons who commit crimes of the character of those under investigation, and it will readily be conceded that it is most desirable, such proofs may not be obtained from those who are forbidden by our law to give them. In regard to the obligations of an attorney to his client in this respect, our statutes are very explicit, making it his duty "to maintain inviolate the confidence, and at every peril to himself, to preserve the secrets of his client" (Code Civ. Proc., sec. 282, subd. 5), and, in the section above quoted, prohibiting his examination as a witness, as therein stated. As said in People v. Atkinson, 40 Cal. 284: "On principles of public policy, communications from a client to his attorney touching the subject matter under investigation are privileged, and will not be allowed to be disclosed by the attorney, even though he be willing to do so."