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See, also, the extended note to McNeal v. Brann, 26 Am. St. Bep. 451.

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Wholey v. Caldwbll.


having it enter his land by its accustomed cbannels without ragaid
to the quantity which they are wont to carry. As against any wrong*
ful act of another proprietor, he haa the right to have eaeh ehannel
carry its doe amount of water.

FORMER CHANNEL.— If, by natural causes, such as extraordinary
freshets, the channel of a watercourse is changed so that it oaasss
to flow upon or through the lands of a riparian proprietor, he has no
right to enter upon the lands of another for the pnrpoie of reatorlng
such stream to its former channel.

L. F. Cobuniy for the appellanta. ^

James F. Farraher^ for the respondent ^

•^ HENSHAW, J. Appeal from the judgment PlaintM is ^

a lower^ defendants are npper^ riparian proprietors. Parks )

creek for many years had flowed over the land of defendants to a H

point on that land known as Batterton crossing, where it diyiJed ^

into two branches called the North Channel and the South Chan- i

nel. About one-third of the waters of the creek passed onto ths c

plaintiff's land through the North Channel, while the remaining H

two-thirds flowed down the South Channel. A third waterway, i|

seemingly an ancient course of Parks creek, left the main stream i

about one-half a mile above Batterton crossing, and entered upon t

and extended oyer the land of plaintiff in a direction paralld with -4

that of the North Channel. This last waterway was known as ths i

Spring Branch Channel. There was no direct surface flow from ^|

Digitized by


Jalj, 1895.] Wholey v. Caldwkll. 65

Parks creek into it, the point of separation being dammed by
grayel, bowlders and debris, but its bed was lower than the bed
of the North Channel, and from North Channel, by percolation
and by small but defined surface streams, water rose in this
Spring Branch Channel and flowed over plaintiff's lands. The
amount of water so rising bore direct relation to the amount of
water flowing through the North Channel. Plaintiff relied upon
the waters of the Spring Branch and North Channels for all bene-
ficial purposes.

Such were the conditions until the winter of 1890-91, when an
extraordinary freshet deposited a bar of bowlders, gravel, and
debris at the head of the North Channel, and thus prevented the
waters from flowing into it as had been their wont At the same
time the waters cut a new bed for themselves. This New Channel
(so named) left the original stream from the south about a mile
above Batterton crossing, extended in a general course parallel
with it, and joined the South Channel, still on the lands of de-
fendants, above the point where South Channel entered plain-
tiflPs property, and thence flowed on by the accustomed South
Channel. During the first year after this change some of the
water passed down the old way to Batterton crossing. The rains
of ®® the following year deposited a bar in the main stream at
the point where the New Channel had been cut, and thereafter
all the waters of the creek flowed down this Nev Channel into the
South Channel, and so onto defendants' lands, leaving dry the
original watercourse down to Batterton crossing, and, conse-
quently, also the North Channel and the Spring Branch Chan-

Plaintiff then commenced this action, averring that these
changes were occasioned wholly by natural causes, and asserting
the right to enter upon defendants* land and to take such neces-
sary and proper steps as might be required to return the water to
the channels wherein it flowed prior to the year 1889, and asking
that defendants be enjoined from preventing him from entering
upon their land and doing such proper and necessary acts. He
also pleaded a grant to himself from defendants' predecessor of
his land and of **the waters accustomed to flow in the Spring
Branch Channel.'' Defendants denied the asserted rights, and
by cross-complaint pleaded the construction and maintenance for
thirty years last past of a dam across the head of the North Chan-
nel sufficient to divert all the water thereof, during ordinary low
stages, from the North to the South Channel, and also their pre-
■criptive right to divert two-thirds of the water of the creek by

AM. Bt. Rv., Vol. LXUL— ft

Digitized by


6G W HOLEY V, Caldwell. £Gal»

ditches. They pleaded defendants' interference with these
rights^ and asked damages accordingly.

Plaintiff was denied an injunction, but, as riparian proprietor
and as grantee under the deed above mentioned, was decreed the
right of ^'restoring and restraining the waters of Parks creek to
the following channels: 1. From the point where the New Chan-
nel cut from and left the former channel (original bed of the
stream) down said former channel in a single body to the Bat-
terton crossing; 2. From the Batterton crossing in two channels
in the following proportions, to wit: One-third through the said
North Channel and the remainder through said South Channel.'^

We cannot see that the rights of the parties in this ^ action
are in any way affected by the grant to plaintiff "of the watera
accustomed to flow in the Spring Branch Channel.'* Aqua cedit
solo. This grant accompanied the grant of the land bordering
upon that channel. Whether the waters which flowed in it came
from the North Channel by percolation and seepage or by well-
defined subterranean or surface channels can here make no dif-
ference. For, in either case, the utmost that could be claimed
for the grant would be that it gave plaintiff full right to the
waters against any asserted right of the defendants to them, and
protected him from any use which defendants might make of the
waters of the creek after the grant, to the injury of their right in
these waters.

But the complaint of plaintiff does not declare upon any such
inyasion or infringement by defendants. It asserts the right to
go upon the land of an upper riparian proprietor and return a
stream to its original channel which has been diverted therefrom
suddenly and sensibly by natural causes. And plaintiff's war-
rant in doing this rests not upon any contractual relations with
defendants, but upon his prerogatiyes as a lowor riparian proprie*

We do not attach importance to the contention of appellants
that the right of the lower riparian proprietor is merely to have
the water enter his land by its accustomed channels, without re-
gard to the quantity which these channels are wont to carry.
The lower proprietor, as against the unwarranted acts of the
upper, is entitled not only to have the water enter his land by its
accustomed channels, but to have each channel carry its due
amount of water. Any other rule would lead to untold hardship
and oppression.

But we are here concerned only with the rights of the lower
proprietor where the change in the channel has been caused not

Digitized by


July, ISOo.] W HOLEY V. Caldwell. 67

by the act of man, but by the act of God. Does the right of the
riparian proprietor to have the water enter his land hy its accus-
tomed channels stand superior to changes wrought in the flow of
a *^ stream by the act of Providence? Has such a proprietor
a paramount right over the forces of nature, as well as over the
acts of man, to insist that water which has once flowed upon
his land shall always flow upon it?

A somewhat extended examination leads to the conclusion that
the assertion of such a right is new to jurisprudence. The right
finds no recognition by the commentators of either the civil or
common law, and no case has come under our observation in
which the question is considered. Even Sir Matthew Hale,
whose De Jure Maris is declared by Chancellor Kent to have ex-
hausted the learning on the subject, makes no mention of so im-
portant a topic. This silence is itself significant. For it is not
easily to be believed that if this important right exists it would
not have been asserted and announced in numerous instances.

While thus lacking in authority it is certain that the contention
<annot find better support from principle or reason. The foun-
dation of the riparian proprietor's rights rests upon the univer-
Bally accepted maxim adopted by the common law from the civil
law: Aqua currit, et debet currere ut currere solebat ex jure
natarae. These rights thus draw their support from the laws of
nature, but they do not rise superior to those laws. When, by
their operation, the flow is lost, the right is lost with it The
new channel itself becomes the natural channel. Otherwise a
riparian proprietor would hold all lands above him in extraordi-
nary and perpetual servitude. If, by the forces of nature, the
BtreMn should change its course at a point miles above him, he
would still be empowered to subject any and all of the intermedi-
ate territory to operations requisite to enable him to turn the
water back upon his own premises, and this, power would be his
to the very fountain-head of the stream. Such a doctrine could
not be tolerated.

If it be needed, however, the reasoning of the foregoing finds
abundant support in analogous principles of the law which are
firmly estabKshed. Says Sir Matthew Hale (Hale's De Jure
Maris, c 1): "A watercourse *^* running between the lands of
A and B, which leaves its course and suddenly and sensibly makes
its channel wholly upon the land of A, belongs wholly to A.**
This rule has been reannounced by all the later text-writers, and
has been adopted by the courts without suggestion of dissent: 3
Kenfs Cbnmientaries, 428; 2 Blackstone's ConmientarieSy 262;

Digitized by


68 TfiBBS V. Smith. [CaL

Angell on Watercourses, sec. 57; Gould on Waters, sec 159, and
cases thereunder. True, it has usually been inyoked in cases of
boundaries and of the accretion and reliction of land, but never-
theless, by necessary implication, it defines the riparian proprie-
tor's right in the matter under consideration Because, if fLe
stream belongs wholly to A, thus depriving B of all his riparian
rights, this can only result because B has no right to go upon an-
other's land and restore to the old channel the water which has
been diverted therefrom ex jure naturae.

For the foregoing reasons the judgment la reyoEBed and the case

McFarland, J., and Templa^ J^ coneiiRed.

Hearing in Bank denied*


years, and as a result of natural caaees, a watercourse has flowed acroaa
the lands of the plainti£f, though it formerly flowed upon the landa of
the defendant, and the change in its course came so gradually that it
is not easily traced in its history, it must be regarded as a watercourse
upon the lands of the plaintiff which defendant has no right to divert,
io that it will again flow upon his lairds: Hinkie y. Aveiyi 88 lowsg 47 1
45 Am. Bt. Rep. 224, and note.

Tebbb V. Smith.

P06 Oaupobmxa, 10L|

ELECTION CONTEST.-BALLOTS, when their integrity la ntle.
factoriiy established, are the best evidence in an election contest of
how the electors voted.

BALLOTS.— One who relies upon overcoming the prima facie correct-
ness of an official canvass by a resort to the ballots mast first ahow
that the ballots presented to the court are intact and genuine.

INTACT AND GENUINE it is sufficient to prove that the mode of
preservation enjoined by the statute has been substantially pursued.

LOTS, WHEN SHIFTS.— When a substantial compliance with the
statute in respect to the preservation of ballots has oeen shown, the
burden of proof shifts to the contestee to establish that, notwith-
standing such compliance, the ballots had in fact been tampered
with, or that they had been exposed under such circumstances that
a violation of them might have taken place. This proof is not made
by a naked showing that it was possible for one to have molested


lots which are offered in evidence in an election contest have been
kept in substantial compliance with the law and remain so unchanged
that they should i)e received in evidence by the jury or trial judge, is a

Digitized by


July, lb»5.J TfiBBB 9. Smith. 69

qneatioQ of fact, the finding upon which the appellate ooart will no4
(liatorb, nnleaa the evidence doea not warrant it.

UTB AS TO TH£ MARKING OF BALLOTS are in their nature man-
datory, but all Btatatea tending to limit the citizen in the ezerciaa
of his right of suffrage should be liberally construed in his favor.

PUTS A CRO.SS AT THE RIGHT of the name of the person voted
for, instead of in the space at the right of such name, does not invali*
date the ballot nor constitute a distinguishing mark, when the only
direction of the statute upon the subject is that the clerk, in printing
the ballot, shall place upon it a direction to the voter that, to vote for
a person, stamp a cross in the space at the right of his name.

The writing of a letter in a blank space left for the insertion of the
name of a candidate, though such letter was probably written by
the voter with the intention of making it part of a name, such inten-
tion being subsequently abandoned, is a distinguishing mark rendering
the ballot void.

FICERS IN NOT OPENING THE POLLS until 10 o'clock, when
the law requires them to be open at sunrise, and the taking of the
ballot boxes with them when they adjourned for dinner to a house
some hundred yards distant, when the law required that such boxes
must not be removed from the balloting places, or the presence of
bystanders, is a departure from the provisions of the statute in so
substantial a respect that the ballots must be rejected, though there
Ib no evidence of fraud, or th^t the result of the election at the pre-
dnct had been altered by such misconduct.

AUSTRALIAN BALLOT LAW.— If all the ballots cast at a pre-
cinct have on them the name of a candidate written by some person,
and but one person in the precinct is lawfully assisted in the making of
his ballot in the mode required by law, only the ballot of the voter
thus lawfully assisted should be counted.

T. M. Osmont, Warren & Taylor, and L. P. Cobum, for the

Gillis & Tapscott, and James P. Farraher, for the respondeni

**** HENSHAW, J. Appeal from the judgment, taken with-
in sixty days after its rendition. The evidence is brought up for
review by bill of exceptions.

*^ By the official canvass of the supervisors Smith was de-
clared elected over Tebbe to the office of county superintendent
of schools of Siskiyou county at the last general election by a
plurality of one vote. Tebbe then instituted this contest. The
result of the judicial count was to increase contestant's total vote
by three, no change being made in the number of votes accred-
ited to contestee, and accordingly the judgment of the court de-
clared contestant to be duly elected.

1. The first point urged is that the court erred in overruling
eontestee's objection to receiving the ballots in evidence.

The evidence showed that the ballots and returns reached the

Digitized by


70 Tedbb v. Smith. [CaL

county clerk through the proper channels. The Bealing-wax on
some of the packages was broken when they were received from
the express office; other seals were broken in handling. The
packages were placed on top of a large case in the clerk's office,
and there remained in the condition in which they had arrived
until the completion of the canvass by the supervisors, when they
were put into three gunnysacks, each sack securely bound and
sealed, and placed under the clerk's desk, where they remained
until produced in court. Upon being opened they were found to
be in the same condition as when they were sealed by the clerk.
There had been no opportunity for any one to tamper with the
ballots, and in fact they had not been disturbed. They were
left alone only when the office was closed and locked. During
office hours they were never left alone, excepting upon one occa-
sion, when the deputy stepped out for '^a minute and a half,''
leaving one Bobertson in the office. At that time the ballots
were in the gunnysacks, and neither the sacks nor the ballots had
been disturbed. Tebbe, the contestant, was a deputy clerk dur-
ing this time, but he was never left alone in the office, and was
given no key to it. We cannot see anything suspicious in this
last circumstance. Upon the contrary, it reflects credit upon the
prudence of the clerk and the fair dealing of all concerned. *^
Knowing of the impending contest, they took all reasonable pre-
cautions to avoid exposing either the ballots or contestant's con-
nection with them to any suspicion.

The principles of law and the rules of evidence governing
cases such as this have been so often declared that a review of the
many authorities is unnecessary. Those curious or interested in
pursuing the subject will find in the reporter's notes, preceding,
many instructive cases collated by the industry of counsel. Suf-
fice it here to say that, while the ballots are the best evidence of
the manner in which the electors have voted, being silent wit-
nesses which can neither err nor lie, they are the best evidence
only when their integrity can be satisfactorily established. One
who relies, therefore, upon overcoming the prima facie correct-
ness of the official canvass by a resort to the ballots must first show
that the ballots, as presented to the court, are intact and genuine.
Where a mode of preservation is enjoined by the statute, proof
must be made of a substantial compliance with the require-
ments of that mode. But such requirements are construed as di-
rectory merely, the object looked to being the preservation invio-
late of the ballots. If this is established, it would be manifestly
unjust to reject them merely because the precise mode of reaching
it had not been f ollowed*

Digitized by


July, 1896.] Tebbb v. Smith, 71

So^ too^ when. a substantial compliance with the provisiona a{
the statute has been shown, the burden of proof shifts to the con*
testee of establishing that, notwithstanding this compliance, the
ballots have in fact been tampered with, or that they have been
exposed under such circumstances that a violation of them might
have taken place. But this proof is not made by a naked show-
ing that it was possible for one to have molested them. The law
cannot guard against a mere possibility, and no judgment of any
ef its courts is ever rendered upon one.

When all this has been said it remains to be added that the
question is one of fact, to be determined, in the *^ first instance,
by the jury or trial judge; and, while the ballots should be admit-
ted only after clear and satisfactory evidence of their integrity,
yet, when they have been admitted, this court will not disturb the
ruling, unless we in turn are as well satisfied that the evidence
does not warrant it. In this case we do not think the ruling was

2. Nine ballots were received and counted by the court for con^
testant, which were marked with a cross, not in the square at the
right of his name, but in the marginal space to the right, thus:


George A. Tebbe...X-.Democrat

It is urged against the ruling that the ballots were not marked
as required by the statute, and that the marks so placed served as
distinguishing marks, and rendered the ballot void: PoL Code,
eecs. 1211, 1215.

The provisions as to the marking of ballots are in their nature
mandatory: Attorney General v. McQuade, 94 Mich. 439; People
V. Board etc., 129 N. Y. 395; Taylor v. Bleakley, 55 Kan,
1; post, p. 000; Attorney General v. May, 99 Mich.
538; Lay v. Parsons, 104 Cal. 661; Whittam v. Zahorik (Iowa,
May 15, 1894), 59 N. W. Rep. 57; but, as is said in Bowers v.
Smith, 111 Mo. 45, 33 Am. St. Rep 491, "all statutes tending to
limit tiie citizen in his exercise of the right of suffrage should be
liberally construed in his favor.*'

If we should find a provision in our statutes requiring the voter
to mark the cross in the square to the right of the candidate's
name we would feel constrained to adopt the rule and reasoning
of the supreme court of Indiana, where such a provision exists,
construing which the court said: "If we hold this statute to be
directory only, and not mandatory, we are left without a fixed
rule by which the officers of election are to be guided in counting
the ballots."

Digitized by


72 Tebbe v. Smith. [CaL

But our statutes contain no such mandatory provisioiL So far
as they are pertinent to this discussion *^^ the provisions are that
'there shall be a margiL on the right-hand side of the names, at
least one-half of an inch wide, so that the voter may clearly indi-
cate, in the way hereafter to be pointed out, the candidate and
candidates for whom he wishes to cast his ballot/' The clerk is,
in printing the ticket, to place upon it the following: **To vote
for a person, stamp a cross (X) in the square ai the right of the
name'*: Pol. Code, sec. 1197.

The mandatory provisions as to voters are found in sections
1205 and 1215 of the same code. *^e shall prepare his ballot by
marking a cross after the name of the person or persons for whom
he intends to vote, .... and, in case of a constitutional amend-
ment or other question submitted to the vote of the people, by
marking in the appropriate margin a cross (X) against the answer
he desires to give'': Pol. Code, sec. 1205.

"'No voter shall place any mark upon his ballot by which it may
be afterward identified as the one voted by him": Pol. Code, sec.

It will be noted that these sections make no mention of the
square, and that there is not even an express direction to the clerk
to place a square opposite the names of the candidates. The voter
is only commanded to place the cross in the marginal space to the
right of the candidate's name, and when he has done this he has
complied with the mandatory provisions of the law. True, the
statute contemplates, at least inferentially, the making of a
square, and that the square is the proper place for the marking
of the cross; but it has not made the doing of this a prerequisite
to the casting of a legal ballot. The intentio of the voter is aa
plainly indicated by the one marking as by the other, and, as was
said by the supreme court of Rhode Island, in construing a
similar law: "Our opinion is, that a cross placed in the margin of
the ballot, on the right of the names of the candidates, opposite
a candidate's name, should be counted as a vote for the candidate
opposite whose name it is placed, whether the margin have any
square in it or not, and if there be a square in it, even though ^**'
the cross is without, or partly without, the square. All that
chapter 731 requires to make the cross effective as a vote is that it
shall be inscribed in the right-hand margin, opposite the name of
the person intended to be voted for": In re Vote Marks, 17 R. I.

As to the last contention upon this point, that the marks served
to distinguish thp- ballots, it need but be suggested that it would

Digitized by


July, 1895.] Tebbb v. Smith. 78

not require mncli ingenuity or intelligence to place the cross even
within tbe square in such a manner as would enable the ballot to
be distinguished. When a legal mark is placed upon the ballot
in a legal place the ballot cannot be rejected because the mark^ as
placed, may serve some ulterior purpose. Section 1215 of the
Political Code, in forbidding marks does not include the cross
l^;ally placed. The ballots were, therefore, properly received.

3. The ballot from Sawyer's Bar precinct (Exhibit F) should
have been rejected. It bore upon it the letter "J'* written in pen-
cil in the blank space left for the insertion of the name for justice
of the peace. Doubtless it may have been the intention of the
voter to write a name, and he may have abandoned his intent
after setting down the initial letter; but doubtless, also, the mark
could serve as a distinguishing mark, and, being one having no

Online LibraryAbraham Clark FreemanThe American state reports: containing the cases of general value and ... → online text (page 7 of 121)