ways endeavored to make it appear "both to the jury and to the public, that the said water so sought to be acquired is sought to be acquired for the benefit of Miller & Lux Incorporated and not for the benefit of the public, and at all of the three trials of said action, for the purpose of instilling this into the minds of the jurors and the public, the said defendant has taken every opportunity to show that the said plaintiff Canal Company is controlled entirely by the corporation Miller & Lux, and to show the interest of Miller & Lux therein, and in the water of said company, and to show that the said water is attempted to be taken for the private use of Miller & Lux and not for the use of the 'public, and by reason of these efforts the said defendant has made the people of the said east side believe, and on every trial has made the jury believe, and on any trial hereafter will be able to make the jury believe that the said plaintiff is substantially Miller & Lux Incorporated, and that the waters so attempted to be acquired will be acquired for the benefit of that corporation, and owing to the prejudice against the said corporation for the reasons aforesaid, it will be impossible to obtain a fair and impartial verdict fixing the damages to be paid by the said plaintiff in said proceeding". It is then set forth that "these contentions of the defendant have become the subject of newspaper comment in the said county, and have become so well known to the public that it is impossible to get a fair and impartial trial in said county".

Incorporated in the affidavit are articles from the Merced Weekly Sun and from the Livingston Chronicle, published at different times during the trials had in the action. It is alleged in the affidavit that by reason of the said newspaper articles and others of like import, "as well as by reason of the arguments made by counsel for the defendant in said cause, and matters of evidence brought out by them, the people of the east side of said county believe that the said suit is entirely for the benefit of Miller & Lux as against the Stevinsons and the East Side Canal & Irrigation Company, and also that it is in favor of the west side of the valley as against the east side, and by reason of the facts aforesaid, the said inhabitants of said county are biased and prejudiced against the said plaintiff, and it will be impossible to get a fair and impartial trial of the said action in the said county".

The statement in the affidavit affecting the counties of Fresno, Madera and Stanislaus is as follows: "Affiant further states that the prejudice aforesaid against the west side of the San Joaquin Valley, and the bias and prejudice against any effort of the said Miller & Lux to obtain more water from the San Joaquin river exists not only in the said county of Merced, but likewise in the counties of Fresno, Madera and Stanislaus, in which Miller & Lux is the owner of extensive holdings, and through which counties the said San Joaquin river flows, and owing to the said prejudice it would be impossible for the said plaintiff to obtain a fair and impartial trial in the said action in any of the said counties, and affiant further deposes and says that said action should be transferred for trial to the nearest and most accessible county where like ground of prejudice does not exist".

The defendant submitted certain counter affidavits which will next be noticed. Howard H. Hogan deposed that he is and at all times during the pendency of this action has been the secretary of the defendant corporation. He described the location of the property "sought to be condemned", its relation to the city of Merced, and the means of communication with the superior court of said county and shows "that the distance from the property sought to be condemned to any court other than the superior court of Merced, by rail, will be two or three times as far as to the superior court of Merced". That the witnesses who have heretofore testified for defendant all reside in Merced county in the neighborhood of the property sought to be condemned and setting forth their various occupations and the hardships that will attend their being called upon to travel at more distant points to give their testimony. That the trials heretofore had have consumed many days, "the last trial taking more than two months". That the witnesses referred to are familiar and well acquainted with the facts connected with the case "and there are no other persons who could testify to the value of said land after the water is taken from the stream as proposed by the plaintiff in condemnation" other than those living in the vicinity of the said property. The affidavit sets forth the reasons why these witnesses will suffer "great inconvenience, pecuniary loss, annoyance and anxiety if they or either of them should attend the trial of the said case in any other court than the superior court of Merced County", and further stating that "the said witnesses are indispensable to the fair and full presentation of the defendant's case to any jury who may be impaneled to try the said case". That the trial of the case in any other court than the superior court of Merced county "would increase the cost of the trial to defendant several thousand dollars". It is then stated, as to the two trials wherein a verdict of the jury was rendered, that the proceedings were as follows: In the first of these last two trials "the evidence was conflicting as to the necessity for the taking of the property sought to be condemned, and as to whether or not the same was in good faith sought for a public as distinguished from a private use." And it is then stated that much evidence, direct and circumstantial, on these issues was submitted by the respective parties and after elaborate argument and full instructions by the court as to the issues, "that the jury, nine voting for the verdict, three against it, found a verdict that the taking of the property sought to be condemned was not necessary for the proposed use", and affiant states that he believes that the verdict was fully supported by a preponderance of the evidence and that the verdict was not arrived at by prejudice or bias, but after a fair, full and dispassionate weighing of the evidence in the case. That thereafter the superior court of Merced county, upon motion, granted a new trial; the case was appealed by plaintiff to this court, and upon said appeal the judgment was reversed for certain errors of law committed by the court in admitting testimony and certain instructions given to the jury, "but said appellate court never determined that the said verdict of the jury was contrary to or unsupported by the evidence in the case".

It is then stated that pending this proceeding the supreme court determined that the issue of necessity for taking property sought to be condemned was not an issue to be determined by the jury but by the court alone. The affidavit then refers to the third trial in which the verdict for damages in the sum of $425,000 was rendered. As to this the affidavit states: "witnesses of well known responsibility, veracity and judgment, who were intimately acquainted with the lands and the flow of the water in the river were sworn and gave their testimony". It is then stated that the testimony of many of these witnesses justified a verdict of a much greater sum while some of the witnesses testified to a less amount; "but the average of the damages testified to by the witnesses who had any familiarity with the lands, their capabilities and the value thereof now and what they would be if the property was condemned as proposed, was in excess of $440,000.00". That the jury visited the premises and lands in question and that the verdict was unanimous and that affiant believes and states the fact to be that the verdict was supported by a great preponderance of the evidence and was the result of an impartial consideration of the evidence and the instructions by the court. That the motion for a new trial was made by plaintiff and granted by the court. That upon the hearing of the motion defendant contended that the motion should not be granted because the verdict was sustained by the great preponderance of the evidence and also objecting to the consideration of the motion "on the ground that the notice of intention to move for a new trial was not served within the time allowed by law". That defendant appealed on a bill of exceptions presenting the question alone whether notice of the intention to move for a new trial was served in time. That the granting or denying of the motion upon other ground was not urged nor the decision of the court appealed from given on other grounds nor was the question of the sufficiency of the evidence considered by the appellate court.

The affidavit then states that upon all the trials which have taken place, many persons qualified as jurors who testified that they had not known Henry Miller or any person connected with the plaintiff corporation or any person connected with the corporation Miller & Lux, or with the family of James J. Stevinson, or any person connected with the corporation James J. Stevinson, and that they had no interest whatever in the litigation or with any other named corporations, and that they "would render a verdict solely and entirely according to the evidence and the law as given by the court, and there has been no difficulty in procuring an impartial, fair, disinterested, unbiased and unprejudiced jury without opinion to try the case, and such a jury can be easily impaneled again for the persons qualified to act as jurors". That at the former trials there was no juror sworn or examined residing on the west side of the San Joaquin river who did not either use water from plaintiff's canal or expected to use said water for irrigation or owned land which would be directly enhanced in value by the success of the condemnation; "that there were and are many qualified jurors residing on the west side of the San Joaquin river who could and would qualify as jurors, and

who would not have any interest in the result of the litigation, direct or indirect, and affiant says there are at least one hundred of such persons so residing on the said west side of the San Joaquin river". The affidavit then states that except a limited number of persons qualified to act as jurors, about one hundred who now use water from the East Side Canal & Irrigation Company's canals and who own land below the flow of water therein, "there is no qualified juror who resides on the east side of the San Joaquin River who is in the least interested in whether the waters of the river are used on the east or west side of the San Joaquin River or by whom the same is used, or whether the same is used by Miller & Lux, or any other person or corporation".

With regard to the water from the canals of the CrockerHuffman Land and Water Company taken from the Merced River, it is stated that the water rights connecting the said river and said company "have long been settled by a final judgment of the superior court of Merced County made and entered between the defendant and the other owners of the land along the Merced River and said Crocker-Huffman Land and Water Company, and said persons who are supplied with said water are so supplied pursuant to said judgment, and there is no reason why the plaintiff cannot make any contention whatever as to the waters of the Merced River, or its use, without in the least prejudicing his cause before a jury entirely of users of such water and in fact in all the litigation which has been heretofore had the plaintiff has contended, both by evidence and extensive and elaborate argument, that the defendant would have water available and sufficient in the Merced River, after the rights sought to be condemned were taken by plaintiff", and it is stated that "the three jurors who sustained the plaintiff's contention in the second trial were persons who use water from the system of canals of the Crocker-Huffman Land and Water Company". That a small number of persons south of the Merced river and east of the San Joaquin river are interested in the use of the waters of the Merced river, but that those so interested "do not constitute more than one-quarter of the inhabitants or more than one-quarter of the persons there who are qualified to act as jurors, and of such persons so interested not more than twenty are persons interested in the waters of the Merced River as riparian owners; that a large number of said persons south of the Merced River and east of the San Joaquin River are owners of land and farms above any possible practical ditch from which to use the waters of the Merced River. That all of the land irrigated north of the Merced River is irrigated either from the Merced River or from the Turlock Irrigation district; that many thousand acres are farmed north of the Merced River by many farmers, which are not irrigated and cannot because of physical conformation of the country ever be practically irrigated from the Merced River". Affiant denies that the city of Merced is nearly or almost entirely supported by persons who consume water from the canals of the Crocker-Huffman Land and Water Company or the employees of said consumers. That "there is no bias or prejudice in that part of Merced County east of the

San Joaquin river, or in any part thereof except probably under the East Side Canal, in favor of or against the plaintiff or the defendant, which ever did prevent or will prevent the plaintiff from a fair and impartial trial of the said action, and affiant denies that because of any ownership of land irrigated or unirrigated, riparian or non-riparian, of Miller & Lux or the great wealth of that corporation, or for any other cause, there exists in the county of Merced any antagonism to the said corporation plaintiff Miller & Lux, or to the said corporations, or either of them, acquiring water or other property, and denies that there is in the inhabitants of the said county of Merced, or any part thereof, or on the east side thereof, a strong or any prejudice against the said corporation last named, or either of them, acquiring more water, or more property of any kind, and denies that any prejudice has been fanned or augmented by any litigation over the water rights of the said San Joaquin River between the said Miller & Lux Incorporated and the James J. Stevinson Company, and denies that if the people of the said community are made to believe that the water so sought to be acquired by plaintiff is for the benefit or advantage of Miller & Lux Incorporated, it would be impossible or difficult to obtain a jury in the county of Merced which would give a fair and impartial verdict on the issue of damages in said case". Affiant states "that no contention of the defendant has become the subject of newspaper comment, except in so far as the facts of the litigation and the trial were subject of ordinary news, and editorial comment, and affiant further states that all of the articles which have appeared from time to time in the public newspapers, and particularly the articles from newspapers quoted in the affidavit of J. F. Clyne filed upon the said motion, had no effect whatever in prejudicing the minds or determining the thoughts or opinions of any person in Merced County and have had no tendency towards creating a feeling favorable or against any party to the litigation". It is then stated that with few exceptions, the people of Merced county "have no knowledge or belief as to whom, or for whom, or against whom, or in whose interest, or against whose interest the said suit is prosecuted, and, generally speaking, they are not concerned or interested, nor do they believe that the said suit is entirely for the benefit of Miller & Lux as against the Stevinsons or the East Side Canal and Irrigation Company, in fact, they have no knowledge, belief or concern on the subject". Affiant also denies that by reason of any fact or facts stated in said affidavit of said Clyne, it would be impossible or difficult to empanel a jury duly qualified in Merced county to fairly and impartially try the issues in the case.

As to the sentiment existing in Madera and Stanislaus counties, affiant deposed as follows: "Affiant denies that there is any prejudice in Madera county or in Stanislaus county, against the west side of the San Joaquin Valley, and denies that any reason whatever exists for any such feeling, and states that no such prejudice exists in either of said counties because of the facts alleged and stated in said affidavit of said J. F. Clyne, and the affiant states that about nine-tenths of the people in Stanislaus