Person seeking to make patentee of land his trustee, in absence of contract between parties, must connect himself with source of title, p. 63.

Approved in Youle v. Thomas, 146 Cal. 543, where contest was instituted by settler applying for purchase of half section as fit for culti vation against holder of certificate of purchase by prior claimant as unfit for cultivation, another settler whose application, pendente lite, has been rejected, cannot intervene.

108 Cal. 72-81. HARGRAVE v. COOK.

Water Rights. Decree apportioning set forth, p. 76.

Cited in Nevada etc. Co. v. Bennett, 30 Oreg. 83, 60 Am. St. Rep. 781, on point that court can adjudicate rights only as between parties to action.

Riparian Rights.-Lower Owner cannot, by appropriation or prescription, obtain riparian rights to exclusion of upper owner, when there is no adverse user, p. 79.

Cited in Bathgate v. Irvine, 126 Cal. 140, 141, as to claim based on prior appropriation and prescription; Cave v. Tyler, 133 Cal. 568, as to prescriptive right based on diversion, after passing property of upper owner; Cardelli v. Comstock T. Co., 26 Nev. 297, where all waters flowing through tunnel come from mine drainage, and water has been used in mine for electrical purposes, waters of tunnel are not subject to appropriation.

Riparian Owner's Right to Waters of Stream flowing through his land is usufructuary right, including right to make reasonable use for irrigation, p. 77.

Approved in California etc. Co. v. Enterprise etc. Co., 127 Fed. 742, one owner cannot lawfully go above lands of upper proprietor and take water for use on his own lands.

Grantee of Easement to Take Water cannot change place of diversion to prejudice of servient tenement, p. 81.

Approved in Southern Cal. Inv. Co. v. Wilshire, 144 Cal. 72, following

rule.

To same effect in Joseph v. Ager, 108 Cal. 520, sustaining right of servient owner to fill up ditch under facts stated; South Side Improvement Co. v. Burson, 147 Cal. 410, where by oral contract line of location of enlarged ditch was changed up stream to higher level, non riparian owner cannot use on lands between new and old ditch, greater quantity of water than that originally acquired.

Appropriator of Water may change place and purpose of use when subsequent appropriators and claimants not affected, p. 80.

See note to Nevada etc. Co. v. Bennett, 60 Am. St. Rep. 800.
General Citation.-Copper King v. Wabash Min. Co., 114 Fed. 992.

Assignment for Creditors is void if giving a preference, p. 85.

To same effect in Rapp v. Whittier, 113 Cal. 431, holding question of consideration immaterial. Cited in Heath v. Wilson, 139 Cal. 368, but holding facts not to show such an assignment.

108 Cal. 88-92. EMIGRANT ETC. CO. v. WEBBER.

Articles of Incorporation.-Failure to file does not destroy power to acquire property, p. 91.

To same effect in Savings etc. Society v. McKoon, 120 Cal. 180, holding such failure not bar to action to foreclose mortgage to corporation.

108 Cal. 92-95. BACIGALUPO v. SUPERIOR COURT.

Will Contest.-Citation in proceeding to revoke probate must be issued within one year from filing of petition, p. 94.

To same effect in Orphan Asylum v. Superior Court, 116 Cal. 446 (and see concurring opinion 451, 452), sustaining power of court to order new citation after year upon a legatee not served with one issued and otherwise served within the year.

108 Cal. 95-101. WHOLEY v. CALDWELL; 49 Am. St. Rep. 64.

108 Cal. 101-115. TEBBE v. SMITH; 49 Am. St. Rep. 68.

Elections. Provisions as to marking of ballots are mandatory, p.

108.

To same effect in Lauer v. Estes, 120 Cal. 653. Citing main case also at p. 654, in holding ballots void for distinguishing mark. Cited in City of San Luis Obispo v. Fitzgerald, 126 Cal. 283, holding ballots on bond election void for departure from statute; People v. Los Angeles, 133 Cal. 345, noted under Russell v. McDowell, 83 Cal. 70; Moody v. Davis, 13 S. Dak. 92, noted under Kirk v. Rhodes, 46 Cal. 399; Maddux v. Walthall, 141 Cal. 414, ballots stamped after words "no nomination" are void as having distinguishing mark; dissenting opinion in Huston v. Anderson, 145 Cal. 333, 337, majority holding cross in blank space and double cross after name are distinguishing marks. Note citations: Taylor v. Bleakley, 49 Am. St. Rep. 242, 243, 244, on general subject. Elections. Statutory Provisions must be substantially complied with, even if directory, p. 111.

To same effect in Atkinson v. Lorbeer, 111 Cal. 422, 424, but holding certain irregularities not fatal when in good faith and without injury to contestant; Murphy v. San Luis Obispo, 119 Cal. 632, holding bond election invalid for noncompliance with ordinance. Cited in Patterson v. Hanley, 136 Cal. 277, but not definitely ruling on question; Hayes v.

Kirkwood, 136 Cal. 402, noted under Russell v. McDowell, 83 Cal. 70. Distinguished in Davis v. Grunig, 143 Cal. 339, court may count ballots, though canvassers rejected entire precinct vote for failure of election officers to return tally lists.

Election.-"Distinguishing Mark" does not include the writing of party designation after name of candidate, p. 113.

To same effect in Jennings v. Brown, 114 Cal. 309, 310, as to similar procedure; Farnham v. Roland, 134 Cal. 153, sustaining and rejecting respective ballots on this ground; Patterson v. Hanley, 136 Cal. 271, rejecting ballots; but cf. Nicholls v. Barrick, 27 Colo. 447, holding no distinguishing mark shown; State v. Fawcett, 17 Wash. 208, holding certain ballots improperly, and others properly, rejected.

Elections.-Ballots are best evidence only when integrity is satisfactorily established, p. 107.

Cited in De Long v. Brown, 113 Iowa, 372, 373, rejecting ballots, because not properly preserved; dissenting opinion in Huston v. Anderson, 145 Cal. 332, majority holding ballots properly admitted in evidence where it appears that envelopes containing them were in same condi tion as received by clerk.

Failure to Open Polls till Ten O'clock and adjournment again at noon render vote of precinct void, pp. 111, 112.

Distinguished in Kenworthy v. Mast, 141 Cal. 273, precinct vote not entirely invalidated because of delay in opening polls where only one man failed to vote because of delay and his vote would not have changed result.

General Citation.-Windes v. Nelson, 159 Mo. 67.

108 Cal. 115-122. IN RE SMITH.

Will.-Widow is Estopped by election with full knowledge of rights, p. 120.

To same effect in Bigelow v. Ballerino, 111 Cal. 562, holding owner of property not estopped under facts from contesting closing of street, where having acted through mistake. Cited in Estate of Lufkin, 131 Cal. 293, noted under Morrison v. Bowman, 29 Cal. 346; Estate of Wickersham, 138 Cal. 363, noted under Beard v. Knox, 5 Cal. 256; Estate of Dunphy, 147 Cal. 105, where will gives widow one fifth of estate on condition that if she takes one half of community property she shall have no other part, but will fixes no time for election, widow is not estopped by statement before trial that she elected to take half of community property from making different election at any time before final distribution; Reville v. Dubach, 60 Kan. 576, holding widow so estopped under facts stated.

108 Cal. 123. GREGORY v. DIGGS.

Dismissal of Appeal for failure to file proper brief will be denied where examination of such brief would be necessitated, p. 123.

Cited in Jarman v. Rea, 129 Cal. 160, noted under Howell v. Howell, 101 Cal. 115.

108 Cal. 124. IN RE BLYTHE.

Appeal will be Dismissed when taken by party having no interest in subject matter, p. 126.

Cited in Williams v. Savings etc. Soc., 133 Cal. 361, noted under Blythe v. Ayres, 102 Cal. 260.

108 Cal. 143-146. BRENOT v. ROBINSON.

Replevin.-Demand against constable for property improperly seized need not as against general demurrer be alleged in form prescribed by section 689 of Code, p. 145.

To same effect in Fuller etc. Co. v. McDade, 113 Cal. 363, sustaining complaint. Cited in Kellogg v. Burr, 126 Cal. 42, holding claims sufficient in form; Richey v. Haley, 138 Cal. 444, holding objection as to form waived under facts stated.

Replevin.-Value of each article need not be separately found by the court, p. 145.

Cited in Kellogg v. Burr, 126 Cal. 40, holding general finding sufficient despite issue as to value made as to each article.

108 Cal. 148-153.

CALIFORNIA NAT. BANK v. GINTY.

Note Surety. Principal signing as maker is liable as such, although payee knows his suretyship as regards his comaker, p. 150.

Cited in Casey v. Gibbons, 136 Cal. 371, noted under Farmers' etc. Bank v. Stover, 60 Cal. 387; Farmers' etc. Bank v. De Shorb, 137 Cal. 693, noted under Harlan v. Ely, 55 Cal. 340; Randall v. Simmons, 40 Or. 559, denial in answer in action on note that there is anything due on note from defendants is not inconsistent with affirmative defense that defendants are merely sureties who have been relieved by unauthorized extension to principal.

Collateral Security for several debts should be applied to that which is least secured, p. 153.

Cited in Smith v. Moore, 112 Iowa, 67, as to mortgage securing claims, some of which are otherwise additionally secured; First Nat. Bank v. Finch, 100 Wis. 453, applying rule on foreclosure of collateral security.

108 Cal. 154-166. DIGGINS v. HARTSHORNE.

Judicial Notice includes location of accepted streets on official map, P. 157.

Cited in Bryan v. Abbott, 131 Cal. 225, extending rule to fact of incorporation of city in this state.

Street Assessments.-Description should be sufficiently definite to allow purchaser under sale to take possession, p. 164.

Cited in Blanchard v. Ladd, 135 Cal. 217, noted under Himmelman v. Bateman, 50 Cal. 11.

Same.-Owner cannot set up improper work as defense, unless he has asserted it on appeal, p. 162.

Cited in Lambert v. Bates, 137 Cal. 680, noted under Warren v. Riddell, 106 Cal. 352.

Street Assessments.-Assignee may sue to foreclose lien even when assignment made as collateral, p. 165.

To same effect in Widaman v. Hubbard, 88 Fed. Rep. 812, applying rule to such assignment of insurance policy.

Street Assessments.-Contract may be entered into on eleventh day after award when tenth a holiday, p. 165.

To same effect in California etc. Co. v. Quinchard, 119 Cal. 88, applying rule to time of execution of private contract by owners.

Street Assessments.-Contract is not affected by failure of superintendent to record it, p. 166.

To same effect in Wells v. Wood, 114 Cal. 257.

108 Cal. 166-173. WILLIAMS v. BERGIN.

Street Assessments-Appeal.-Notice must be given to owners in strict accordance with statute, p. 170.

Cited in Gill v. Oakland, 124 Cal. 340, holding notice insufficient in case of adjourned meeting of board.

Street Assessments-Appeal.-Notice to some of parties to be affected will not be extended to others, p. 172.

To same effect in Hibernia etc. Co. v. Lewis. 111 Cal. 522, applying rule to notice of appeal to supreme court; In re Central etc. District, 117 Cal. 391, applying rule to unauthenticated notice of meeting in formation of irrigation district; but see Williams v. Viselich, 121 Cal. 316, holding notice of appeal in street assessment proceedings sufficient under Act of 1885; Estate of Pendergast, 143 Cal. 138, where on appeal by state notice of appeal was addressed only to heirs who had petitioned for distribution, appeal will be dismissed as to other heirs.

Appeal from assessment by street superintendent suspends action for collection of assessment, p. 173.

Approved in Creed v. McCombs, 146 Cal. 453, arguendo.

108 Cal. 173-179. O'CONOR v. ROARK. S. C. see O'CONOR v. WITHERBY, 112 Cal. 41.