wise, even if the law sanctioned it, in some cases to apply in this case the principle resipsa loquitur, that the mere fact that the accident happened is prima facie evidence of negligence. Fuse is a composition of various ingredients; pitch, powder etc., and is affected by heat and dampness, and the labels contain directions to "keep cool and dry." The different kinds of fuse look very much alike, and in this case the fuse was sold in October, 1877, and was not used till February, 1878, (the rainy season), was kept in a damp tunnel, though called a "dry" tunnel. There is some conflict of testimony as to the label on the fuse. The plaintiff testified that the label contained the words "Eagle Safety Fuse." Mr. Skinker produces the label I have before me, and says this label was used long prior to the sales in October, 1877, and that the label described by plaintiff was never used. This is the label used: "California made; patent improved water fuse, doubly taped for blasting in wet ground and under water. Fits the Giant and Hercules Powder Cap. Manufactured by the Eagle Fuse Works, near Santa Cruz, California. Never failing one hundred feet. Keep cool and dry."

It will be seen the words "Eagle Safety Fuse," "Felton," "Near Santa Cruz," and "Warranted" are not on the label. Now, in his evidence Mr. Skinker swears positively that this is the label, and the plaintiff is not positive, except as to the word "Warranted."

Moreover, the plaintiff dictated a letter in which he charges himself with being negligent.

There was an objection to the letter being introduced, on the ground that a letter of that kind could not prove negligence. The counsel were right in that; the Court could not admit it for that purpose; but he being an expert it was his own opinion of his own action-whether he used or did not use proper care-and it was evidence tending to establish negligence on his part.

Plaintiff says he dictated this letter to Doctor Phelan (when he was unable to write himself), but that he did not dictate the words charging him with negligence. Doctor Phelan swears he is positive he wrote it just as it was dictated, and he was certain he would not have put those words in unless they had been dictated by the plaintiff.

Moreover, the experts all testify that it is impossible for fuse to burn and hang fire for seventeen minutes.

The hole was like the bore of a gun; and this charge was put into the hole, not for the purpose of producing the final blast, but for the purpose of enlarging the bottom of the hole, "chambering it," so as to put in a large charge of black

powder. The experts testify that the blast in such a hole will shoot out like the charge from a gun, and if he had approached it in a careful and proper manner, had taken another charge and dropped it in, he could not have received the injury; that he could only have received the injury he did by having his face over the hole; if he had kept his face away from the line, or axis of the hole, he could not have received this injury.

Judgment will be entered for the defendant.

Court of Appeals of New York.

[Decided September 21, 1880.]

CONGER vs. CONGER.

DIVORCE-ADULTERY. In an action for divorce in the absence of direct proof, the Court must be satisfied that a criminal attachment subsisted between the defendant and the alleged paramour, and that opportunities occurred when the intercourse in which they intended to indulge might with ordinary facility have taken place.

CRIMINAL INTIMACY NOT PRESUMED FROM MERE ASSOCIATION. In the absence of criminating circumstances, mere association or intercourse between a man and woman cannot be attributed to an improper purpose. PROOF OF CRIMINAL ATTACHMENT. To justify a decree of divorce such proximate circumstances must be proved as by former decisions, or in their own nature and tendency, satisfy the Court that the criminal act has been committed.

This is an action for divorce brought by a wife against her husband on the ground of adultery. The defendant was married to the plaintiff in 1836; at the time of her marriage plaintiff owned a large amount of property. They had a large family of children. Defendant had, before this action was commenced, borne an excellent reputation. It was claimed by defendant that the action was instigated by the plaintiff's children to deprive him of the benefit, which by virtue of his marriage, he had in the plaintiff's property. The referee reported in favor of defendant.

DANFORTH, J., delivered the opinion of the Court:

In an action for divorce in the absence of direct proof, the Court must be satisfied that a criminal attachment subsisted between the defendant and the alleged paramour, and that opportunities occurred where the intercourse, in which it is

satisfied the parties intended to indulge, might with ordinary facility have taken place. (D. & S., 132, 135.)

An adulterous disposition must be established on the part of the defendant, and the burden of doing this is upon the plaintiff. (2 S. & D. Apps. 372.) The law presumes the defendant is innocent of any violation of his marriage vow, and that he observes the obligation of his contract. In the absence of criminating circumstances mere association or intercourse between a man and a woman cannot be attributed to an improper purpose.

Guilt cannot be presumed when the evidence shows that the defendant was visited by the woman with whom he was charged to have committed adultery at a reputable house, part of the visits being in company with her husband, openly, at no unusual hour; that detectives were placed upon their track, who kept not only within sight, but within hearing, but spoke of no indelicate word or act by either; and although there may have been opportunity, there was no evidence of the will to improve it. (71 N. Y. 137.)

To justify a decree of divorce, there must be such proximate circumstances proved as by former decisions, or in their own nature and tendency, satisfy the Court that the criminal act has been committed. (1 Hagg. Cases, 299; 21 N. J. Ch. 256; 16 N. L. L. & Eq. 122; 17 Id. 453; 5 Iowa, Clark, 204; 5 Daly, 296; 71 N. Y. 537.)

When, on the part of the plaintiff there is evidence at most of opportuniny, or the being together of the parties, not that opportunities which accompanies design, or is created by contrivance, but that merely which shows a possibility that the act might have been committed, none of improper conduct in the enjoyment of that opportunity, while on the part of defendant is the direct and positive oath of the person charged with having joined in the act that it was not committed, it is entitled to weigh in answer to any inference which might without it be drawn from circumstances, although it might be quite unimportant in answer to direct and positive proof given by a witness of whose honesty and truthfulness the Court was satisfied. It cannot by any just inference be said either that the adulterous act was committed, or even that there was gross impropriety of conduct. Judgment of general term, reversing judgment for defendant on report of referee reversed, and judgment for defendant affirmed.

FOLGER, C. J., concurred in the judgment.

WATER RIGHTS-DIVERSION ABOVE MOUTH OF DITCH-OWNERSHIP OF WATER. One who appropriates water by means of a ditch leading from a natural stream cannot maintain an action for the value of water, as for personal property sold and delivered, against one who, without his consent, has diverted the stream above the mouth of his ditch. NATURAL BED OF STREAM USED AS DITCH-EXTENT OF OWNERSHIP OF WATER IN SUCH NATURAL BED. If the natural bed of a stream is used as part of a ditch for conducting water turned into it, such natural bed acquires the character of a conduit only to the extent of the water turned in, and only such water is the personal property of the ditch

owner.

Appeal from the Superior Court of El Dorado County. Charles F. Irwin and George G. Blanchard for appellant. T. B. McFarland and G. J. Carpenter for respondent. MCKINSTRY, J., delivered the opinion of the Court: For the purposes of this decision it may be admitted that water acquired by appropriation (to be sold to miners and others), by means of a ditch leading from a natural stream, becomes, after it has passed into the ditch, the personal property of the appropriator. Further, it may be admitted that if water be taken or diverted from the ditch, without the consent of the appropriator, he may waive the tort and bring an action for the value of the water taken. Nevertheless, although such appropriator may be titled to the flow of the stream undiminished, the water in the stream above his ditch is not his personal property. The stream, as yet, flows in its natural course- -a part

en

of the realty. The appropriator certainly does not become the owner of the very body of the water until he has acquired control of it in conduits or reservoirs, created by art, or applied to the purpose of leading or storing water by artificial means. It follows that he cannot maintain an action for the value of the water-as for personal property sold and delivered against one who, without his consent, has diverted the stream above the mouth of his ditch.

The evidence tended to prove that plaintiff was owner of a ditch dug for the purpose of conducting water from the Cosumnes River to Squaw Hollow Creek, and also of another ditch leading from Squaw Hollow Creek, at a point below the Cosumnes ditch. Defendant diverted water from Squaw Hollow Creek at a place between the two ditches. There was evidence that at the times the water was taken by the defendant there was not sufficient water in Squaw Hollow Creek to fill the Squaw Hollow Creek ditch." But there was no evidence of the quantity of water then running from the Cosumnes ditch into Squaw Hollow Creek, or that any was flowing through that ditch. For aught that appears all the water diverted by defendant was water naturally flowing into Squaw Hollow Creek. If this was the case, it is clear from what has been said above, that an action for the value of the water, as personal property, cannot be maintained. The natural bed of Squaw Hollow Creek acquired the character of an artificial conduit to the extent, and only to the extent, that the waters of the Cosumnes River flowed through it. The water brought to Squaw Hollow Creek by the Cosumnes River ditch alone, if any water can be so considered, can be considered the personal property of the plaintiff.

The defendant moved for a non-suit, on the ground, amongst others, that "the testimony utterly fails to show any contract, agreement or promise by defendant to pay plaintiff for the alleged water." If plaintiff relies upon the promise to pay reasonable value, which the law implies from the wrongful taking of personal property-the tort being waived there is a complete failure to prove the facts from which the promise is implied (and therefore the promise itself), since the evidence fails to show that any personal property was taken.

The view we have adopted renders it unnecessary to decide other questions presented. We may suggest, however, first, the answer does not distinctly deny that the plaintiff was organized as an association under the laws of Pennsylvania; and second, the complaint fails to allege that the laws of