junction was issued, and defendants were compelled to and did shut down their mill. Upon the trial the injunction was made perpetual, and the defendants appeal.

A. B. Winfree, for appellants. John L. Rand, for respondent.

BEAN, C. J. (after stating the facts). It is admitted that plaintiff has a prior right as against the defendants to the use of water from Greenhorn and Greenwood creeks to the carrying capacity of his ditch during the placer mining season and that defendants have no right to interfere therewith. The contention for defendauts, however, is that they are entitled to use a sufficient amount to operate their mill during such times as plaintiff is not using it for the purposes of his appropriation. An appropriator of water acquires a right therein only to the extent to which it is applied to a beneficial use, and he cannot claim any more than is necessary for such purposes. "The appropriation of water to a beneficial use," says Mr. Justice Moore, "is founded upon the rule of necessity, which, when satisfied, becomes the measure of the right, whereupon subsequent appropriators may use the surplus, or that to which the prior appropriator is entitled, when not necessary to his use." Mattis v. Hosmer, 37 Or. 523, 62 Pac. 17. 632. An appropriation does not confer such an absolute right to the body of water diverted. or to that flowing in the stream, that the appropriator can allow it to run to waste or prevent others from using it for mining or other legitimate uses, when it is not necessary for the purposes of his own appropriation. There may be. therefore, more than one appropriator of the waters of the same stream. The first appropriator has a right to insist that the water shall be subject to his use and enjoyment to the extent of his original appropriation; but in subordination to this right subsequent appropriators may use the channel or waters of the stream as they may choose, and while enjoying his original right the first appropriator has no cause to complain.

What diminution of the quantity will constitute an invasion of the rights of the prior appropriator will, of course, depend upon the facts and circumstances of each case, and whether upon his petition a court of equity will interfere to restrain such diminution "will depend upon the character and extent of the injury alleged, whether it be irremediable in its nature, whether an action at law would afford adequate remedy, whether the parties are able to respond for the damages resulting from the injury, and other considerations which ordinarily govern a court of equity in the exercise of its preventive process of injunction." Atchison v. Peterson, 20 Wall. 507, 515, 22 L. Ed. 414. Now, applying these principles to the case in hand, the solution is easy. It appears from the evidence that, in order to make any beneficial

use of the waters for mining purposes, plaintiff must have from 150 to 200 inches at his mines during the mining season, and from 15 to 20 inches when he "cleans up"; that during a portion, if not all, of the mining season, which, as we have said, extends from the last of March or the 1st of April to the middle or last of August, there is more water in the two creeks than plaintiff's ditch will carry; and that from the close of the mining season until the following spring there are only from 3 to 15 inches. It is clear, therefore, that plaintiff cannot use the water for the purposes of his appropriation during the dry portion of the summer and fall, or in the winter months, because there is not sufficient, and the diversion of from 3 to 5 inches by the defendants during the spring or flush season is no injury to him, because there still remains more water in the streams than his ditch will carry. It would seem, therefore, that the use of the water by the defendants could not injure the plaintiff.

But it is claimed that it is necessary for water to flow into and through plaintiff's ditch at all seasons of the year, to keep it open and in condition to take up and carry the flush waters of the spring to his mining grounds, and that such is a beneficial use and within the limits of his appropriation. There is some evidence to support this contention. Its force and effect, however, are largely impaired by the fact that plaintiff was willing to sell to defendants from 3 to 5 inches of water before it reached the head of his ditch for $1.50 a day, "as an acknowledgment of his rights," thus indicating that he did not regard it as essential to the preservation of his ditch. And the origin of this litigation is, as we read the testimony. not so much that the small quantity of water diverted by the defendants materially interfered with the plaintiff's rights as a prior appropriator, as that the defendants are unwilling to pay the plaintiff for water flowing in the stream above the head of his ditch, whether he can make a beneficial use of it or not. Under such circumstances we do not think a court of equity ought to exercise the extraordinary remedy of injunetion and restrain the defendants from using the water for the operation of their mill. The evidence shows that the injury sustained by the plaintiff, if any, by reason of defendants' use, is hardly appreciable in comparison with the damages which would result to them from the suspension of the operation of their mine, and if plaintiff is damaged he has an adequate remedy at law. There is no evidence that defendants are not responsible and capable of answering for damages which their use of the water will produce, if any, to the plaintiff. There is no claim or the part of the defendants that they have a right to dump their tailings into the stream above the head of plaintiff's ditch and they

nave no purpose or intention of doing so, and therefore injunctive relief is unnecessary for that purpose.

The decree is reversed, and the complaint dismissed.

(149 Cal. 381)

HOYT v. ZUMWALT. (Supreme Court of California.

1. EVIDENCE-DECLARATIONS.

(Sac. 1,273.)

June 28, 1906.)

Declarations of a wife, made during her husband's life, impeaching his title to land, are not admissible against her in an action for the the land; her title depending on his having had title.

[Ed. Note. For cases in point, see vol. 20, Cent. Dig. Evidence. § 953.]

2. TRIAL-RECEPTION OF EVIDENCE-EXCLUSION-EFFECT ON ADMISSIBILITY FOR DIFFERENT PURPOSE.

Exclusion of declarations of a person, when offered as substantive evidence, is no bar to their admission to impeach such person, when afterwards testifying as a witness.

[Ed. Note. For cases in point, see vol. 46, Cent. Dig. Trial, § 130.]

3. ADVERSE POSSESSION-POSSESSION.

Where one gives his son money to pay for land on condition that he be provided with a home there, his subsequent residence on the premises as a member of the family is not possession, adverse or otherwise.

[Ed. Note.--For cases in point, see vol. 1, Cent. Dig. Adverse Possession, § 138.]

4. JUDGES-BIAS-EVIDENCE.

On a hearing of a motion to call in another judge to preside on the ground of bias of the sitting judge, which motion is considered by such judge, his own affidavit stating the facts may be used in opposition to the motion. [Ed. Note.-For cases in point, see vol. 29, Cent. Dig. Judges, §§ 228, 229.] 5. SAME.

A motion to call in another judge to preside, on the ground of bias, is properly denied. there being nothing to support it, except the bare circumstances that 16 years before he, as district attorney, prosecuted and convicted defendant, his father, and a confederate, for an aggravated case of battery, and had then, in his official capacity, laid the facts before the Governor for his information on passing on a petition for a pardon.

In Bank. Appeal from Superior Court, El Dorado County, M. P. Bennett, Judge.

Action by Rose H. Hoyt, administratrix of George M. Zumwalt, deceased, against C. T. Zumwalt. Judgment for plaintiff. Defendant appeals. Affirmed.

Wm. F. Bray, for appellant. Chas. A. Swisler and Abe Darlington, for respondent.

BEATTY, C. J. This is an action' in the nature of ejectment, prosecuted by the widow and administratrix of George M. Zumwalt, deceased. The demanded premises consist of four acres of land, upon which are a dwelling house and other improvements. In May, 1897, Mrs. Larkin, who was then the owner of the land, executed and delivered her deed purporting to grant it to said George M. Zumwalt, and if that deed took effect according to its terms, the plaintiff at the com

mencement of the action was the owner and entitled to the possession of the premises. The adverse claim of the defendant, who is a brother of plaintiff's intestate, and who ousted the plaintiff in October, 1900, is based upon a deed of that date from their father, Isaiah Zumwalt, purporting to grant the premises to him and to another brother; and he defends the action upon the allegation that his brother George took and held the bare legal title to the land under the conveyance from Mrs. Larkin in trust for his father, who, he claims, purchased it for his own use, paid the full purchase price from his own funds, and personally received Mrs. Larkin's deed when it was delivered; his sole purpose in having his son named as the grantee being to screen the property against any possible claim of his wife, from whom he had been separated, whether by divorce or agreement does not appear. The cause was tried in the superior court without a jury, and the findings were in favor of the plaintiff and against the defendant as to every material issue. With respect to the equitable defense of a resulting trust in favor of Isaiah Zumwalt and his grantees, they were, in effect, that the land was purchased from Mrs. Larkin by George M. Zumwalt and the deed Idelivered to him; that the purchase money ($150) was given to him by his father as an advancement in furtherance of his proposed marriage to the plaintiff, and upon an understanding that after the marriage the old man was to have his home with them during the remainder of his life; that when the dwelling erected on the land was ready for occupancy the marriage took place, and from that time until June, 1900, the father, son, and daughter-in-law resided there together. Towards the close of this period dissension arose between the father and the young people, and on the 7th of June be shot and killed his wife and son, and his son's infant child, and seriously wounded the plaintiff. Afterwards, while in jail, he executed the deed under which defendant claims title, and in pursuance of which he took possession of the premises in the absence of the plaintiff. Upon these and other findings judgment was entered in favor of the plaintiff for restitution of the demanded premises and for mesne profits. The defendant appeals from the judgment and from an order denying a new trial, alleging errors in certain rulings of the court, and contending that the evidence does not support the findings of fact.

As to the evidence, we think it is abundantly sufficient to sustain the findings, without regard to the testimony of the plaintiff herself; and as to her testimony we do not think it involves any such inconsistencies or contradictions of statements made elsewhere as to have required the court to disregard it. In all material particulars it is entirely consistent with itself, and it is strongly corroborated by the testimony of apparently re

spectable and wholly disinterested witnesses. There was no error-certainly no prejudicial error-in the rulings of the court upon objections to evidence. To sustain his equitable defense of a resulting trust the defendant offered to prove that the plaintiff during the lifetime of her husband had made certain declarations or admissions favorable to his claim. Upon plaintiff's objection to the competency of her declarations or admissions to impeach her husband's title to the land, the evidence was excluded, and we think properly so. Her husband's estate could not be bound by her admissions. And, besides, the plaintiff was afterwards examined as a witness and testified fully as to all these matters. If defendant had desired, he could then have offered all this rejected evidence to impeach her; for there was nothing in the previous rulings of the court to prevent him from making this legitimate use of the evidence, which was all contained in the depositions of two of his sisters then on file in the case.

The defendant, by his answer, also asserted a prescriptive title to the premises by adverse possession for more than five years, but under the findings of the court as to his claim of constructive trust, there is no support for this defense. If Isaiah Zumwalt gave his son the money to pay for the land upon the sole condition that he should be provided with a home there, his subsequent residence on the premises as a member of the family did not constitute possession, and certainly there was nothing to give it the character of an exclusive or adverse possession. Defendant's adverse possession commenced in October, 1900, and the action was commenced in February, 1903.

The only remaining question in the case arises out of the ruling of the court denying the motion of the defendant to call in another judge to preside at the trial. The motion was based upon the alleged bias of the judge (Code Civ. Proc. § 170, par. 4), and was supported by the defendant's affidavit averring his belief that he could not have a fair and impartial trial before Hon. M. P. Bennett, the judge of the superior court of El Dorado county, by reason of the prejudice and bias of said judge, and alleging as grounds of his belief, the following facts: "That at a trial of this affiant in the justice's court of Mud Springs township, in said county, the said Hon. M. P. Bennett. who was then district attorney of said El Dorado county, declared that if he had known as much about the case just tried before it had been tried as he knew at the end of the trial he would have dismissed the charge of battery, and have taken me up on his own responsibility for assault to murder, and sent me across the bay where I belonged, meaning thereby that he would endeavor to send me to the state penitentiary; that said declaration by said Hon. M. P. Bennett was the expression of a malevolent desire on his

part to injure this affiant, and that there was no just ground for such remark, as the case was a mere petty quarrel, and that upon conviction of affiant upon the charge of battery a sentence of six months in the county jail or $250 fine was imposed upon affiant; that thereupon every public officer in the city of Placerville, except Judge Bennett, and all the merchants and business men of Placerville, petitioned the Governor of the state to interpose his executive clemency to relieve affiant from what they considered to be a grossly unjust and severe sentence, and that said Hon. M. P. Bennett went personally to the Governor and protested so forcibly against any action on his part that the Governor declined to interfere; that said Judge Bennett has ever since regardéd affiant with hostility, and that at the trial of a certain criminal cause entitled 'People v. Isaiah Zumwalt' in the month of September, 1900, in which the plaintiff in this present action, Mrs. Rose H. Zumwalt, was the prosecuting witness, and affiant was diligently aiding the defense, the foregoing facts were set out by affiant in an affidavit filed by the defendant in said criminal proceeding in support of a motion made by the defendant in that case for a change of judge, which affidavit has since disappeared from the records of said El Dorado county and cannot now be found; that said motion was heard by Hon. J. H. Hughes, superior judge of Sacramento county, Cal., who determined that upon the facts alleged the said Judge Bennett was disqualified from trying the said original cause of People v. Isaiah Zumwalt, by reason of his prejudice and bias against the said defendant therein and this affiant, and said cause was thereupon tried before Hon. F. T. Nilon, superior judge of Nevada county; that in this present case the plaintiff, Rose H. Hoyt, is the same person who was the prosecuting witness in the said criminal cause, and that the testimony necessary to be offered and used on the trial of this present action will include a part of the matters testified to on the trial of said criminal proceeding, and that the same reasons that disqualified the said Hon. M. P. Bennett on the trial of the said criminal proceeding also disqualify him to try the present action; that affiant requested his counsel to suggest these matters to the superior court of El Dorado county in the hope and belief that said Hon. M. P. Bennett would, on such suggestion, of his own motion declare his disqualification, ad request another judge to sit in his place on the trial of this action, and that affiant is informed by his said counsel and verily believes, and on such information and belief avers the fact to be, that said Hon. M. P. Bennett refused to make any request to any other judge to try this action and declared that he is not disqualified, and if any affidavit as to facts showing his prejudice and bias against affiant were filed, he, the said Judge

Bennett, would cause counter affidavits to be filed and would unless affiant would put up the money to pay another judge to come here and try said action, refuse to allow any other judge to try said cause, but if affiant would put up the money to pay another judge to come to this county, he, the said Judge Bennett, would then call in some other judge to try this case; that affiant is advised by said counsel that for affiant to furnish money, or to offer to furnish money, to pay another judge to come to this county to try said cause, would be contrary to the law and a contempt of court, and contrary to public policy. C. T. Zumwalt."

The plaintiff, in opposition to the motion, filed the, affidavit of the judge, and of a witness, who, as constable, was present throughout the trial referred to by the defendant in his affidavit, and who deposes that he heard no such language used by Judge Bennettthen district attorney of El Dorado county— as alleged by defendant. The affidavit of the judge shows that the trial referred to was had in 1887, 16 years before the trial of this cause; that he attended the trial of the defendant, his father, and one Brown, jointly charged with the crime of battery, at the request of the justice of the peace of the township, and in obedience to his official duty; that the defendants were entire strangers to him; that on the evidence produced they were all three convicted and sentenced to pay a fine of $250; that the judgment was just, and erred, if at all, on the side of leniency; that he did not at any time use the language attributed to him, and that if he said anything at all resembling it he did so in the argument addressed to the court in commenting upon the evidence; that subsequently a petition for the pardon of the defendants was circulated in the county containing a misstatement of the facts of the case; that he refused to sign it, and to prevent the Governor from being misled in the matter, he, in the performance of his official duty, sent him a written communication-a copy of which is set out in his affidavit-containing a correct summary of the evidence adduced at the trial; that he did not go personally to the Governor to oppose the granting of the pardon; that after his official connection with the battery case ended he thought no more of the parties, and had never entertained any sentiment of personal hostility to them or either of them. His affidavit further shows that the objection to his presiding at the trial of Isaiah Zumwalt for murder was submitted to Judge Hughes upon the uncontradicted affidavit of this defendant, the same in substance as his affidavit in this case, except as to those proceedings. He admits that he expressed his willingness to invite another judge to preside at the trial if defendant would pay the expense of his attendance, but says that,

deeming himself not disqualified, he was unwilling to subject the county to the expense involved in calling another judge.

The court did not err in refusing the request of the defendant that he should call in another judge to hear and determine the motion and did not err in denying it on the showing made. The amendment constituting subdivision 4 of section 170 of the Code of Civil Procedure, was considered and construed in People v. Compton, 123 Cal. 412, 56 Pac. 44, and in Talbot v. Pirkey, 139 Cal. 326, 73 Pac. 858, in both of which cases it was held that the judge whose bias is alleged must himself decide the motion, but that he must decide it upon the facts averred in the affidavits without reference to his state of mind. It was therefore the right-if not the imperative duty-of Judge Bennett to decide the motion, and it was also his privilege to contradict special averments of defendant's affidavits as to any matters of fact from which bias might be inferred. He had a right, for instance, to deny the use of the language which the defendant charged him with having used at the trial for battery, though he might have found it a delicate matter to decide the question if he had not been corroborated by a disinterested witness. He had a right also to show-what the affidavit of the defendant did not show-that 16 years had elapsed since the trial of the battery case, that he had not gone to Sacramento to make a personal appeal to the Governor to refuse a pardon, that he had merely reported the facts of the case in writing, as his official duty required, and, although he could not base his decision upon his consciousness that he was free from bias, it was not improper for him to state that fact. Our view in regard to this matter is that an affidavit which merely avers the belief of a party that a judge is so biased against him that he cannot have a fair and impartial trial of his cause amounts to nothing. To support the motion facts must be stated from which it may be reasonably inferred that such bias exists. When such facts are averred the belief or the affidavit of the judge that he is not biased is no ground for denying the motion: but as to specific facts, which uncontradicted might justify the inference of bias. the judge is as competent a witness as any other, and, if the facts happen to be exclusively or peculiarly within his own knowledge, it is entirely proper that he should state them. position to this view it is urged that the judge will necessarily find the fact as he has averred it, and that this would be to make him a judge in his own cause. But the proposition is entirely unfounded. The cause is not his. He has no interest pecuniary or otherwise in trying it-if he had he would be disqualified on other grounds--and where he has no interest in the cause he has a right to consider probative facts within his own

In op