The third exception is as follows:

"3. The court erred in refusing to give the third instruction asked for by plaintiffs' counsel: 'That defendant having asserted a right under the deed of Degrallo is bound by it, and that the statute of limitations does not begin to run until he claims under the right now set up by him.""

It does not clearly appear, either from the record or the argument upon it, what is meant by this exception. To be at all available for the plaintiffs, it must be found to refer to some portion of the evidence in the case. The only portion of the evidence in the case to which this exception appears to be responsive is defendant's allegation, that "early in 1867 Brown offered him a ranch in Chino valley, as an inducement for him to bring his family and settle there." This seems to be that which this exception describes as "the right now set up by him." The exception assumes that this is in some way fatally conflicting with the "defendant's having asserted a right under the deeds of Degrallo," and that this severed the tenancy in common, which is asserted by the plaintiffs' first exception, and formed an era in the case which put the statute of limitations in active operation. Such, however, is not the legal effect of this testimony. There is really no conflict in the defendant's claiming at one time under Degrallo's deed, and at another under Brown's promise. They are parts of one complex transaction, in which the deed appears as the fulfillment of the promise previously made. The defendant might at one time assert that Brown's promise was the consideration which actuated him; at another, the five hundred dollars mentioned in Degrallo's deed; at another, the deed itself; and at other times any two of these, or all three of them together: and yet by these he would forfeit no legal right and incur no legal hazard. The defendant, in his conversations on this subject with Brown himself, or with Brown's grantees, would naturally refer to Brown's promise; with strangers, to Degrallo's deed; and in stating the cost of his ranch and water right to anybody, he might allege the five hundred dollars mentioned in the deed, by which he and his must expect to hold them, and be guilty of no breach of legal or moral truth, and incur no forfeiture or hazard.

No error appears in the charge thus excepted to, and the exception must be overruled.

The fourth exception is as follows:

"4. The court erred in its charge to the jury, that plaintiffs were estopped by the declarations of Brown."

The exception does not fully state the charge of the judge upon the trial of this case, nor the evidence to which it refers. The charge was this: "Again, if Brown did represent to defendant while he, Brown, was in possession of the property now claimed by the plaintiffs, that one fourth of the water flowing in the ditch was the property of Degrallo, and used the inducements alleged to induce the defendant to go there and settle, and defendant, relying on his representations, did so go to that valley and enter upon the possession of the ranch and water right, under and by virtue of any alleged purchase or agreement by Brown, or Brown and Postle, from or with Degrallo, these plaintiffs are estopped, as Brown himself would be if he were the plaintiff in this action, from denying such right of defendant to one fourth interest in the water right forever after-and this if Degrallo never had any right or interest in the property whatever, or if there was no such man in being."

The whole of this exception must be taken together, with the evidence to which it refers, in estimating its legal effect in this case. On recurring to the testimony, we find that the defendant took possession of his ranch and one fourth of the water now in controversy in March, 1867, and has ever since used and enjoyed both, and that, the deed of Degrallo to defendant was recorded April 11, 1867. Brown's deed to Schneider is dated November, 1867; Schneider's deed to Campbell, one of the plaintiffs, and Buffum, is dated August, 1868; and Campbell's deed to Baker, the other plaintiff, is dated March, 1872. The only principle upon which Brown's grantees, the present plaintiffs, can deny the binding effect upon them of Brown's declarations concerning the water to the defendant, would be that they had no notice of them. In respect to this, the presumption of law is, that Campbell and Baker exercised ordinary diligence in ascertaining the conditions and relations of their ranch at the time they took possession of it in November, 1867, and in March, 1872.

The law requires of them ordinary diligence, in all such matters as this water controversy, in which others are concerned. Vigilantibus non dormientibus subservit lex. The law will hardly take from the defendant his ditch water and give it to the plaintiffs in pity or approval of their self-imposed ignorance at the time they purchased their present ranch. The evidence shows that if they then made the ordinary efforts to learn the extent of their water rights, they found the defendant in possession and enjoyment of the one fourth of the water now in controversy, his deed of record for the ranch he occupied and farmed, and the public repute of the locality conceding the defendant's right to the water of which the plaintiffs now seek to deprive him. The evidence shows that John G. Campbell, one of the plaintiffs in this case, made his tenant, D. R. Poland, understand that the defendant owned the one fourth of the water in controversy at the time of their engagement in 1868. It is somewhat significant that in Brown's deed to Schneider, of November 5, 1868, for the ranch which the plaintiffs now claim, there is no mention of any ditch or water right whatever, and that the quantity is not stated in any of the subsequent deeds for the same property. If this court had any doubt of the conclusion above stated, the defendant's right could be maintained on the ground of parol license.

It has none, however, and this exception must be and is overruled.

The fifth and last exception is as follows:

"5. The court erred in its charge to the jury, that there must be a preponderance of evidence in favor of plaintiffs to entitle them to recover."

The proposition thus excepted to would seem so axiomatic as to defy either question or discussion. If in any case the evidence should be equal on one side and on the other, how could the jury find a verdict at all? The jury would be compelled to agree to disagree in such a case, and thus the trial would fail. In cases such as this, if they actually do occur, it is the highest duty of the jury to disagree. To enable a jury, therefore, to find a verdict at all, in any case in which there is conflict of testimony, there must be a preponderance of evidence in favor of one side, and the jury

must find it as a condition precedent to the rendition of their verdict. That the judge thus stated a truism to the jury on the trial of this cause, is no matter of successful exception.

And this exception is accordingly overruled.

The exceptions of the appellants thus all fail, and there is nothing else in the record to show why the judgment in this case should not be affirmed.

This conclusion, it is submitted, if there were any doubt of its legality, could be sustained on the evidence which the case presents of a parol license to the defendant of the water right in controversy.

And the same conclusion is reached by another most simple process of investigation. It was found as a presumption of fact in the statement of this case, that the defendant was located higher up on the ditch and nearer the source of water supply than the plaintiffs; and also, as another presumption of fact, that his location was therefore older than theirs. By a very simple deduction the legal conclusion, therefore, is, prior in tempore, potior in jure, in the absence of all sufficient evidence to the contrary, that the defendant's right is better than the plaintiffs'.

The judgment of the court below in the present case is therefore hereby affirmed.

TWEED, A. J., concurred.

REPORTS OF CASES

DETERMINED IN

THE SUPREME COURT ·

OF THE

TERRITORY OF ARIZONA,

JANUARY TERM, 1875.

RUFUS E. ELDRED, APPELLANT, v. SOLOMON WARNER, ADMINISTRATOR OF THE ESTATE OF GEORGE M. NEWSOME, DECEASED, RESPONDENT.

WHERE TWO PERSONS DOING BUSINESS AS PARTNERS AGREE IN WRITING that, in case of the death of either of them, the survivor shall settle the business of the partnership, and after paying the just debts of the partnership and of the deceased, shall have all the remaining property of every kind for his sole use and benefit, without any process of law whatsoever, accounting only to the creditors of the partnership and of the deceased partner, a complaint filed, after the death of one of the parties, in the district court by the survivor, setting up the agreement and asking that the administrator of the deceased party be required to turn over to him all the property in his possession belonging to the estate of the deceased, and offering, on the part of the plaintiff, to perform all the terms and conditions of the agreement, is not demurrable on the ground that it does not state facts sufficient to constitute a cause of action.

APPEAL from a judgment of the district court of the first judicial district, county of Pima, sustaining the demurrer to the complaint. The facts are fully stated in the dissenting opinion delivered by Chief Justice Dunne.