The record-union., 1893-03-10
APPEALED CASES.
Two Decisions Rendered by the Su-
preme Court.
New Trial Granted in a Fresno County
Water Rights Case-A Tardy
Tehama Appellant.

The decision of the Supreme Court was
filed in Deputy Clerk Govan's Office yes
terday in the case of the Posachane
Water Company VS.. Standard and others.
The case involves the conflicting claims
of the parties to the waters of Posachane
Creek, Fresno County. 1t is averred in
the complaint that since 1886 the plaintiff
and its grantors have been the owners of
certain ditch through which they have
diverted and carried the waters of said
creek and used the same for beneficial
purposes, and that in December 1890, the
defendants wrongfully constructed dam
near the head OF said ditch, by which they
completely prevented the flow of any
water into the same from said creek, etc.
The defendants are Z. w. STANDARD and
several other persons, and they aver,
substantially, that said STANDARD con-
structed ditch and acquired the right to
divert the waters OF said creek through
said ditch in 1885: that the ditch and
water right of STANDARD were prior and
superior to any right of plaintiff or its
predecessors to any waters OF said creek,
and that defendants righttully did the
acts complained of in the complaint,
under and by virtue of the prior right OF
STANDARD.
The Superior Court found in favor of
| the priority of the right under which the
defendants claim, and found that the
ditch constructed by STANDARD in 1888
was twenty-seven 1eet in width at the
top, twenty feet in width at the bottom
and thirty inches in depth and that by
means of said ditch and canal the said /.
W. STANDARD, on or about the lst day Of
March, 1885, appropriated and diverted
421 cubic feet OF water per second, flow
ing and to flow on a grade of seven feet
to the mile"
The court also found that plaiutiff, and
its grantors, had acquired and appropri-
ated OF the waters OF said creek 1000
cubic feet OF water per second, but that
their said appropriation OF water and
the right to the use thereof was and is
subsequent and inferior to the appropria-
ton OF the defendant, T. W. STANDARD, of
AZ cubic feet of said water"
Judgment was entered accordingly
and the plaintiff appeals from the judg-
ment, except that part thereof which
awards plaintiff its costs of suit and also
from an order denying plaintiffs motion
for new trial.
The Supreme Court says: I'VE see no
errors committed by the court in arriving
at the conclusion that the said T. W.
STANDARD had prior right to some of the
waters of said creek. But
the finding of the court as to the amount
of water diverted by the STANDARD ditch,
prior TO the vesting of appellants water
rights in the creek, is not sustained by
the evidence"
The decision recites the case in detail,
and in conclusion says: the judgment
and order appealed from are reversed and
the cause remanded for a new trial"
APPEALED TOO LATE.
In the case of Fred Sutton VS.. William
SUnnn9 and ntberS nj
says:
Respondent has moved to dismiss the
appeal from an order of the Superior
Court of Tuolumne County striking out
appellants statement on motion for a
new trial upon the ground that it was not
taken in time. Such an order is an order
made after final Judgment, and an appeal
I'thereirom must be taken within sixty
days. The appeal in this case was tax en-
too late and must be dismissed. Calder
wood VS.. Peyser, II Cal. ll0; Clark vs.
Crane, 81 Cal. $685.
| "Respondent also makes a motion to
strike out certain portions of the tran
| script, on the ground that they are no
part of the record. The motion will be
denied. Such practice is not recognized
in this court. If the matters to which
counsel object form no part OF the record,
they will not be considered by the court
when the merits of the appeal are before
us for determination.
| 1.-The motion to dismiss the appeal will
be granted; the motion to strike cut will
| be denied"