DEPARTMENT No. 2. [Filed August 25, 1880.] GEORGE F. BRONNER, APPELLANT, VS. JULIUS WETZLAR, RESPONDENT. MOTION FOR NEW TRIAL-PRACTICE. Motion for new trial is addressed to the sound legal discretion of the Court a quo, and will not be reversed except for manifest abuse of discretion. IDEM. An order granting a new trial vacates the judgment, and it no longer exists for the purpose of appeal. Appeal from the District Court of the Sixth Judicial District, Sacramento County. J. H. McKune and Armstrong & Hinkson, for appellant. George Cadwalader, for respondent. THORNTON, J., delivered the opinion of the Court: This is an appeal from an order granting a new trial. In an opinion which appears in the transcript the learned Judge, in granting the motion, says: "I am now convinced that in making the second finding of facts the evidence was misapprehended, and did not justify said finding. The findings should have been to the effect that defendant collected the rents in his capacity as executor of the estate of John C. Keenan, and not as agent of the estate of Rosanna, or the executor thereof." The defendant moved in the Court below for a new trial on the ground, among others, that the findings of fact were contrary to and not supported by the evidence. In the statement the finding above referred to, in the opinion of the Judge, was attacked on the ground that the evidence was insufficient to justify it. It is well settled that a motion for a new trial on this ground is addressed to the sound legal discretion of the Court a quo, and that on an appeal from such order granting a new trial it will not be reversed unless it appear that there has been a manifest abuse of discretion. (Phelps vs. Union C. M. Co., 39 Cal. 410; Hall vs. Bark Emily, 33 Id. 624; Pierce vs. Schaden, opinion in Department 2, filed August 23, 1880.) Upon an examination of the testimony in the transcript, we find that the only testimony as to the capacity in which defendant collected the rents, referred to in the Judge's opinion quoted above, is that of the defendant himself, who deposed that he collected them as the executor of John C. Keenan. We see no abuse of discretion by the Court below in making the order appealed from. We do not intend, by anything said in this opinion, to be considered as approving the conclusion of the learned Judge of the Court below, as to the effect of the Statute of Limitations in barring a recovery from the defendant if he made the collections referred to as the executor of John C. Keenan. We think it best, as the case is presented, to leave that question open. The order granting the new trial vacated the judgment, and it no longer existed for the purpose of appeal. The appeal from the judgment is therefore dismissed, and the order appealed from affirmed. We concur: Myrick, J., Sharpstein, J. DEPARTMENT No. 2. [Filed September 7, 1880.] PATRICK SULLIVAN, APPELLANT, VS. J. S. BEARDSLEY, RESPONDENT. PARTIAL EVICTION-DAMAGES. Where defendant merely consented to the entry of a decree against himself, whereby water was diverted from the land leased from defendant to plaintiff, such an act did not constitute a partial eviction of lessee, whereby he could claim damages against the lessor. Appeal from the District Court of the Twentieth Judicial District, Santa Clara County. D. M. Delmas, for appellant. D. W. Herrington, for respondent. SHARPSTEIN, J., delivered the opinion of the Court: On the 1st day of November, 1874, the defendant leased the premises described in the complaint, with the appurtenances, to the plaintiff for the term of three years. At the time of the execution of the lease there was a stream of water running through the demised premises, and there was an action then pending which the San Jose Water Company had commenced for the condemnation of said water right. On the day following the execution of the lease, the defendant in that action and in this consented to the entry of a decree, in the action for condemnation, in favor of the Water Company, under which it appropriated the water of said stream to its own use. The plaintiff alleges that he was damaged thereby, and introduced evidence tending to prove that allegation. The issues were submitted to a jury, which returned a verdict in his favor. A new trial was moved for by the defendant upon a statement, and the Court granted the motion on the ground" that the special circumstances under which the water was diverted from the leased premises did not constitute an eviction of the plaintiff by the defendant." The instructions given to the jury make it quite apparent that the Court, during the trial, thought otherwise. Among the instructions is the following: "When the eviction is partial, as it was in this case, and the lessee remains in the occupation of a portion of the demised premises, the measure of damages is the value of the premises as they would have been without the partial eviction, and then the value of them as evicted deducted." The Court, in this instruction, seems to have passed upon the principal issue in the case, and in so doing undoubtedly erred. But to our comprehension there is a graver difficulty to be overcome before a recovery could be upheld upon the facts of this case. The defendant does not appear to have participated in any act or proceeding for the diversion complained of, beyond consenting to the decree of condemnation. As the defendant's lease ante-dates that decree, and he had no notice, actual or constructive, of the pendency of the action in which the decree was entered, he was not affected by it. The water company acquired no right to divert the water from the demised premises as against him. His property in the water was not condemned, and whoever proceeded under that decree to divest him of any right that he had acquired under the lease became liable to him for such damages as he might sustain by reason thereof. If the defendant had in any way participated in diverting the water, he would doubtless be liable. But it does not appear that he did anything beyond consenting to the entry of a decree against himself, which could not in any way affect the rights or property of the plaintiff. It seems to us that the case is somewhat analagous to those cases in which a party recovers a judgment against one person, and then attempts to execute it against the property of another. We have never known it to be claimed in such a case that the party who suffered judgment to be entered against him would be liable for a trespass committed under it upon the property of some other person. For anything which appears to the contrary, the decree of condemnation might have been rightfully executed at the termination of the plaintiff's term. But there is nothing in the case from which we can infer that the defendant ever disturbed, or licensed any one to disturb, the plaintiff's enjoyment of the demised premises during the term for which they were leased to him. To constitute a partial eviction in this case, it would be necessary for the plaintiff to show that the' water company had established a right to divert the water by a title prior to that of the plaintiff, or that the defendant had at least had some agency in diverting it. And if the defendant did nothing beyond what he is charged with having done in this case, we are not aware of any principle upon which he can be held liable to the plaintiff in any form of action for the diversion of the water by a mere naked tresspasser, who has assumed to take the plaintiff's property by virtue of a decree against the defendant. It therefore follows that the order granting a new trial must be affirmed. Order affirmed. I concur: Morrison, C. J. I concur in the judgment upon the ground first stated in the foregoing opinion. MYRICK, J. IN BANK. [Filed September 8, 1880.] No. 7225. THE PEOPLE, APPELLANTS, VS. WILLIAM ASHBURNER, RESPONDENT. (See Volume VI, page 105, for majority opinion.) A. L. Hart, Attorney-General, for appellants. DISSENTING OPINION. In this case I am unable to agree with the opinion of the Court. In my judgment the grant made by the Act of Congress, when accepted by the State, became a contract invioTable by any Act of the Legislature. This seems to be the conclusion arrived at in the Yosemite Valley case, in 15 Wallace, 77–91. The grants were made on conditions expressed in the Act, and accepted on those conditions. One of the conditions was that the premises granted were to be managed by the Governor of the State, with eight other commissioners to be appointed by him. The Governor made the appointment of commissioners, of which Ash burner was one. When he made the appointment of these commissioners, his function quoad the matter of appointment was at an end, except perhaps that whenever a vacancy occurred by death or resignation he might fill such vacancy. It was not intended, nor does the language of the Act of .Congress bear any such construction, to vest in the Governor any power of removal; nor did any power vest in the Legislature to effect any removal, either mediately or immediately. If this view be correct, and in my opinion this is the fair and just interpretation of the Act of Congress, the acceptance by the State made it a contract which could not be impaired by any power in the State. The State was at liberty to accept or reject the proffer made by the Act of Congress; but when it accepted, it was an act of bad faith to remove the commissioners appointed. There was no constitutional impediment to the State's entering into such an agreement. Though it has been repeatedly held that one Legislature cannot bind another on matters of mere legislation, still it has been frequently decided that this rule does not apply to contracts. (Cooley's Const. Lim. 153-4, and cases there cited.) A State is no exception to this rule. (State Bank vs. Knoop, 16 Howard, 389; Fletcher vs. Peck, 6 Cranch, 135; Dartmouth College vs. Woodward, 4 Wheat. 518; Tennett vs. Taylor, 9 Cranch, 43; Town of Paulett, 9 Cranch, 292.) In my opinion the judgment should be affirmed. DEPARTMENT No. 2. [Filed September 7, 1880.] THORNTON, J. GOLDEN GATE PACKING COMPANY, RESPONDENT, AGREEMENT. VS. THE FARMERS' UNION, APPELLANT. Construction of agreement for sale of goods on commission. Appeal from the District Court of the Twentieth Judicial District, Santa Clara County. D. M. Delmas, for respondent. Houghton & Reynolds, for appellant. SHARPSTEIN, J., delivered the opinion of the Court: This action was brought by the plaintiff to recover of the |