good when the appeals were taken at different times, it would be just as valid when the appeals are taken at the same time. It is equivalent to saying that if a party take an appeal from an order overruling or granting a motion for a new trial he is precluded from taking an appeal from the judgment in the case, when the statute asserts the reverse. The statute is not ambiguous, nor of doubtful meaning, but, on the contrary, it is express and clear. The court is not prepared to hold that the appeal from the judgment was unauthorized. In this territory an appeal from a judgment is of more importance to an appellant sometimes than an appeal from an order denying a motion for a new trial. Where the appeal is from the judgment, the appellant, if the amount be of sufficient size, can take the case to the supreme court of the United States. But where an appeal is from an order, this cannot be done. The fact that the amount in this case might not be sufficient to authorize an appeal to the supreme court of the United States, does not change the principle. The argument against our entertaining an appeal from the judgment when there had been an appeal from the order denying the motion for a new trial, might be of weight in regard to the propriety of this court hearing a second argument of the same points on different appeals in the same case, but it certainly could not go further. The motion to dismiss the appeal and affirm the judgment, is overruled. ZANE, C. J., and HENDERSON, J., concurred. 5 302 7 453 13* 598 27* 578 SAMUEL LEVY, RESPONDENT, . SALT LAKE CITY, LEVY V. SALT LAKE CITY, 3 Utah, 63. MUNICIPAL CORPORATIONS. IRRIGATING DITCH.--Under the charter of Salt Lake City granting to the corporation power "to distribute, control and so regulate waters flowing into the city throughout such channels as may be most advantageous and to prevent unnecessary waste of water," and under the ordinance of the city regulating the water, and establishing a plan for distributing the water and defraying the expenses thereof, when water is turned into any ditch with the knowledge and approval of the city, and is thereby conveyed to the various persons empowered to take the water, such ditch is a public ditch while so used, and the city is chargeable with negligence with respect thereto while so using it. Affirming Levy v. Salt Lake City, 3 Utah, 63. EVIDENCE. CITY ORDINANCE. --The ordinance above is properly admissible in evidence as explaining in what way the city was carrying out the power granted by the charter, what officers represented it and for whose acts the city was responsible. APPEAL from a judgment of the district court of the third district, and from an order refusing a new trial. The opinion states the facts. Messrs. Shecks & Rawlins, for appellant. Messrs. Sutherland & McBride, and Mr. Arthur Brown, for respondents. HENDERSON, J.: This cause is brought against the city for negligently permitting water to flow into plaintiff's cellar and injuring his stock of goods. The case has once been before this court on the appeal of the present respondent, (3 Utah, 63, 1 Pac. Rep., 160), and in the opinion of the court delivered on the hearing of that appeal, and above referred to, the claims of the parties as stated in their pleadings are particularly set forth. The cause was again brought to trial in the third district court, and the testimony for the plaintiff tended to show the same state of facts set forth in the opinion of Mr. Justice Twiss on the hearing of the former appeal, above refer without repeating it. city water-master at the time the injury occurred, and who was sworn on the part of the plaintiff on the former trial, being absent from the territory, the plaintiff called Alma H. Winn, the court stenographer, to make proof of his former testimony. This was objected to on the ground that the defendant was not allowed to properly cross-examine the witness. The objection was overruled, and the defendant excepted. The witness, after giving the testimony above referred to, stated also that as water-master he knew that the water assigned to block 59 ran through the ditch from the street, and that on the night in question he turned the water on the block and served notice upon the proprietors adjoining the ditch of their allotment of water, and did not turn it off, but left it running after the time when all the allotments of owners bordering thereon had expired. On cross-examination by the defendant, the witness was asked why he did not turn the water off, and various questions were also asked him for the purpose of showing that the city did not build the ditch through the block, and that he, as water-master, had not at any time exercised, or assumed to exercise, any control over it; all of which was objected to as immaterial, and the objections sustained. It is the exclusion of this testimony on cross-examination that the appellant claims renders the testimony improper. referred to, and to which we Mr. C. H. Wilcken, who was The plaintiff also put in evidence the following city ordinance, which was received against the objection of the defendant that it was immaterial and irrelevant: "Section 1. Be it ordained by the city council of Salt Lake City, that the city water-master shall qualify in the same manner as the treasurer; provided, that his bond shall be filed by order of the city council, and he shall have authority to appoint, subject to the approval of the city council, assistant water-masters, resident within the city, who shall receive from him a certificate of appointment, and shall act in his name, and for whose official conduct he shall be responsible, "Sec. 2. The period of artificial irrigation shall be deemed to commence annually on the first day of April, and end on the first day of November. "Sec. 3. Before the fifteenth day of March in each year, every person entitled to use a portion of the waters flowing into said city for irrigation shall present to the city water-master, upon a form presented by said water-master for that purpose, a written application for the use of water as aforesaid, during said period, and specifying therein the lot or lots, or fraction thereof, owned or possessed by said applicant to be irrigated, and agreeing therein that upon demand, and within fifteen days thereafter, he will pay to the city water-master his proportion of the expense of constructing and keeping in repair all gates, dams, sluices, flumes and ditches necessary to convey the water from the main or natural water channel to the premises of such applicant. Said application shall be filed with the city recorder. "Sec. 4. Before the said first day of April, annually, the city water-master shall apportion and allot the waters of the several streams flowing into the city among the applicants entitled to use a portion of said waters, with respect to time and quantity of water according to the extent of land specified in their respective applications. "Sec. 5. Upon such appointment, and before the said first day of April in each year, each applicant as aforesaid, upon the payment into the city treasury of the sum of one dollar for each one and one-quarter acre lot, and fifty cents for each fraction thereof, named in his application, and upon presentation of the treasurer's receipt therefor to the city water-master, shall receive from said water-master a certificate specifying the proportion of water to which such applicant shall be entitled, and the times during which he may use the same in said period. "Sec. 6. It shall be the duty of the city water-master to see to the proper location, construction, and repair of all gates, dams, flumes, ditches, and reservoirs, that water may not be wasted, streets or sidewalks overflowed or obstructed, or private property damaged. "Sec. 7. Whenever it shall be necessary to make any of the improvements mentioned in the preceding section, an estimate of the cost thereof shall be made by the city water-master, which cost shall be apportioned among the persons interested in such improvement, according to their respective portions of water; but in case of any sudden emergency, the water-master shall cause any necessary repairs to be made immediately, the cost of which shall be apportioned thereafter. The said water-master shall cause written notice to be given to each of such persons of the amount to be contributed by him towards such improvement; said notice to be served on him personally, or be left at his residence, or at his usual place of business. Any such person who shall fail, within fifteen days after the receipt of such notice, to tender to said water-master the amount therein specified, shall forfeit his right to his portion of water for irrigation during said period, and the same may be apportioned by the water-master among such persons as bear the expense of such improvement; provided, that if any person tender the equivalent of his proportion of the costs of any of the before-mentioned improvements in labor or material necessary thereto, the water-master is authorized to accept such equivalent, but all such labor or material must be furnished within twenty-four hours after demand is made therefore by the water-master. "Sec. 8. At all points where water is distributed into main ditches, the water-master shall cause substantial gates to be constructed, at the expense of the corporation, by which the proportion of water flowing in each way may be accurately determined. "Sec. 9. No person shall be entitled to convey his portion of water from a main ditch to his lot or premises without first having constructed a substantial gate both at the main and at the head of his branch ditch, the latter to be closed and water-tight, except during the term of such person to use his portion of the water. Where such branch ditch crosses any portion of a sidewalk, the same shall be made of lumber or other substantial material, the covering of which shall be on the same level with such sidewalk. Any person violating any of the provisions of this section |