Year: 1874

as reason that as the above cited exception | is first in practical order and if allowed must | impel this court to reverse the judgment in | the case, 1t is here considered first. The l Legislature of this Territory has from its or igin assumed that 1t Is authorized to fix the term. of the supreme and district courts Till the present case, no conflict has arisen on this subject between this court and the leg islature, because the practice Of tue court has been to adopt and ratify the action of the legislature in regard to the terms of the district court. The opinion then quotes the act of the legislature fixing the terms of the district courts and proceeds as follows: This distribution of the terms of the district courts was undoubtedly defective execu- ton of the order vf Congress, because it con tained no limitations tO the sessions of the court It was just such legislation as ena- bled a Mormon district judge to sit l2O days, not for the transaction of business but to charge the federal government an enormous bill of expcnses-an abuse or rather one Of the abuses which induced the Act of Con-

 gress of 1856, which will be cited hereafter. The ratifying order of the supreme court supplied this defect by imposing necessary limitation. It was found however that the interval, only two weeks between the Yuma and Yavapai terms, was absolutely too brief to enable the United States district attorney to transact the United States business at one of these courts and reach the other in time for it. Accordingly the legislature was in vited to join the judges of the supreme court in amending this order, not because these judges doubted their power to alone make the order, but to avoid every appearance of disrcspect towards the legislature, and all possibility of exception-such as has been taken in the present case. The legislature refused to act and the judges of the supreme court, not doubting iheir authority, made and promulgated the following order.

 The opinion then gives the order in full, and follows by explaining the necessity for such order and then continues: The author ity of this court to make the order in ques- tion Is derived from the Act of Congress of August l6, 1856, which is as follows: 'Sec- ton g. That the judges of the supreme court in each of the Territories, or . majority Of them shall when assembled in their respect i've seats of government, fix and appoint the several times and places of holding the sev- eraf courts in their respective districts and limit the duration of the terms thereof; pro yided that the said courts shall not be held at more than three places Tn any Territory and provided further that the judge or judges holding such courts, shall adjourn the same without day at any time before the expira- ton of such terms, whenever in his or their opinion, the further continuance thereof is not necessary. Then follows a history of the act, with reference 10 opinions of other courts relative to the subject and concludes by saying: The supreme judges of this Ter ritory therefore had the power to appoint the regular terms of the district courts for each of the several entire districts, and this excep- tion to the contrary is oyerruled.

 The error first assigned on the brief ol appellants counsel, and the one next to be considered, is as follows: The court erred in charging the jury that if defendant had been in possession of the said property five years plaintiffs must fail in this action. To this the appellants counsel adds: "Ths asnes= of the property in qgsstion wcEc ten ants in common of the ditch and water right the possession of one being tue possession of all." The latter statement is certainly true and 1t is an abandonment of this excep tion. This unity Of possession which makes the defendant tenant in common with th' plaintiffs, protects him frUm all disturbsDc' by them or either of them. He can call up on them to account for any invasion of hi rights, and bis unity of possession can only be dissolved by proceedings in partition, O by amicable agreement. if this is not 80 then from all that appears in the case, th' five years and some months which eiapsct between the defendants entry upon the en joyment of the water right iB March, 1867 and the institution of this suit in August 1872, must bar the piaintiffs' recovery. Com piled Laws, page 33l, Section s. From al that appears in the present case, the defend ant is entitled to the protection which is du to a tenant in common or Co che statute C