County are residents of the East side of the San Joaquin River and are not interested in any measure in the use of water on the west side of said river, and said persons inhabit lands and reside on lands on said east side of said river in Stanislaus county which are entirely irrigated and supplied with water from the Tuolumne River and these persons are not concerned nor do they care who uses, or where the waters of the San Joaquin River are used, and there does not exist any prejudice against Miller & Lux or against any other corporation because of any water such corporations have acquired the right to use, or because of any intention or effort to acquire any more or additional water of the San Joaquin River, and what is herein stated as to Stanislaws county is equally applicable to Madera County, and the people of said Madera county have no prejudice against Miller & Lux or against plaintiff because of any water now being used or because of any intention or effort to acquire more water from the San Joaquin River, and affiant denies that there is any prejudice against Miller & Lux or against plaintiff, from any cause whatever, in Madera County, or in Stanislaus County, which would prevent the plaintiff in the above entitled case having a fair and impartial trial in either of said counties, and the affiant says that because of the facts herein stated the said case should be tried by a jury impaneled from the qualified jurors of Merced county, and that said case should not be transferred because of any prejudice or bias of the people of Merced County."

Following the affidavit of Mr. Hogan is the affidavit made by eight members of the jury who participated in rendering the verdict of damages for the sum of $425,000.00. The affidavit states "that the verdict of said jury was rendered without bias or prejudice toward or against either party to said litigation manifested in the jurors' deliberation, and affiant believes that the verdict was the result of fair dispassionate weighing of the evidence introduced, and as instructed thereto by the court; that some of the most responsible, best informed and honest persons of Merced County testified at said trial as to the damage that would be suffered by defendant in the event that the property sought to be condemned was taken; that there were some twelve or thirteen of such witnesses, and that some of them testified that the damage was much greater than the amount stated in the verdict of the jury, and some testified to less, and the average of the testimony of the witnesses best qualified and whose testimony I believe should have received weight was more than $440,000.00" and that the verdict was rendered after due consideration of all the evidence. "That affiant is well acquainted with the people of Merced County, and knows that a fair and impartial trial of said above entitled case can be had in Merced County before a jury of persons qualified to act as jurors." Then follows the affidavit signed by six of the jurors who rendered a verdict in the second trial upon the issue of the necessity. The affidavit states "that the verdict of said jury was rendered without bias or prejudice toward or against either party to the said litigation manifested in the jurors' deliberation, and he believes the verdict was the result of fair, dispassionate weighing of the evidence introduced

and as directed by the instructions of the court; that he had no bias or prejudice in weighing the evidence or in applying the instructions of the court; and that affiant believes that a fair and just verdict was rendered under the evidence and the law as given; that affiant believes that a fair and impartial trial of said above entitled cause can be had in Merced County by a jury selected from those persons in Merced County qualified to try the said above entitled cause".

Affiant J. N. Hitchcock deposed that he had been a resident of Merced county for seventeen years and during that time had been engaged in farm work and acting as justice of the peace, and had occasion to talk with many of the qualified jurors of said county, "and he has not heard any of them say anything nor has he seen any of them do anything which would indicate that there existed any prejudice against Miller & Lux Incorporated, or against the San Joaquin & Kings River Canal & Irrigation Company Incorporated, a corporation, and affiant does not believe that any such prejudice exists on the north and east side of the San Joaquin River, and affiant does not believe that any feeling exists which would cause a jury selected to try a case between the San Joaquin & Kings River Canal & Irrigation Company Incorporated and James J. Stevinson, a corporation, to be partial or unfair, and knows that a jury can readily be selected from the qualified jurors of Merced County who will render a just and fair verdict in any litigation between said parties; that there are several thousand persons qualified to act as jurors who reside in Merced County, and who are not interested in the distribution of the water of the plaintiff's canals, and who are not interested in the waters of the Merced River, and that from such persons there would be no difficulty in selecting a jury who, when sworn, would render a just, fair and impartial verdict" as between the parties.

The affidavit of affiant D. E. Wood, a resident of Merced county engaged in the business of newspaper reporting, sets forth facts similar to those of affiant Hitchcock.

The affidavit of H. P. Spencer, a resident of Merced county engaged in the business of banking, is to like effect.

The affidavit of E. P. Sheridan, a banker residing in Merced county, is to like effect.

The affidavit of J. B. Hart, a resident of Merced county for over 26 years, engaged in the business of banking, is also to like effect.

The affidavit of A. E. Howard, a resident of the same county and engaged in the business of hotel keeping, is to like effect.

Then follow numerous affidavits touching the situation in Stanislaus county. Affiant David F. Lane deposed that he is a resident and has been a resident of Stanislaus county for more than twelve years and is now engaged in the business of general manager of Turlock Merchants Incorporated and has been so engaged in said county for more than one year and has "met practically all the residents of the city of Turlock and persons residing in the neighborhood and that if any prejudice existed which would prevent Miller & Lux or the said San Joaquin & Kings River

Canal & Irrigation Company Incorporated from having a fair and impartial trial, the said affiant would probably have heard expressions of such people and affiant has heard no such expressions", and that he knows of no reason why the parties mentioned in the action would not have a fair and impartial trial by a jury in said county "and particularly that he knows of no reason why a jury could not be secured easily who would fairly and impartially assess and fix the damages in a condemnation suit wherein the said Miller and Lux, a corporation, or the said San Joaquin & Kings River Canal & Irrigation Company Incorporated, a corporation, was plaintiff, and James J. Stevinson, a corporation, was defendant". The affidavit further states "that a jury could easily be procured who would have no bias or prejudice in the trial of such issue and which jury would fairly and properly assess the damages and try the case between said parties with impartiality and render their verdict accordingly. That there is no feeling in Stanislaus county against the development of the west side of the San Joaquin River in favor of the development of the east side of the San Joaquin River which would in any way influence the verdict of a jury selected (for the trial of) a case in Stanislaus county". The affidavit then states the following fact: "That the irrigation of the said lands in Stanislaus County on the east and north side of the San Joaquin River is from water diverted from the Tuolumne River and irrigators have no concern with the water of the San Joaquin River and are indifferent as to the use thereof or where the same is used; that more than 90 per cent of persons qualified to act as jurors in Stanislaus County are persons who reside on the north and east side of the San Joaquin River and have no concern with the waters of the San Joaquin River, and are indifferent as to who uses the said water for irrigation. That the qualified jurors on the west side of the San Joaquin River are without the territory now served or proposed to be served by the waters sought to be condemned and would no doubt testify upon their voir dire that they were disinterested in any condemnation of water of the San Joaquin River by the said San Joaquin & Kings River Canal & Irrigation Company Incorporated, and would readily qualify as jurors in any action for condemnation and would be able to try such a case fairly and impartially".

Then follow several affidavits by different persons, some of whom are residents of many years in Stanislaus county, among them being a farmer; another engaged in general merchandise in the city of Turlock, county of Stanislaus; another an attorney at law at the city of Turlock; another a banker; another a searcher of records in the city of Modesto; another a banker; another an attorney at law; another a banker in the city of Modesto; another the manager of the gas company; another engaged in general merchandise; another engaged in the real estate business; another editor of the Evening News and president of the Chamber of Commerce of the city of Modesto; all of whom depose to facts substantially the same as set forth in the affidavit of affiant Lane.

As to Madera county, the evidence presented by the counter affidavits is not so specific as that given in relation to the con

ditions existing in Stanislaus county, but numerous affidavits state that affiants, occupying various stations in life and residents in Madera county for many years, are of the opinion that a fair and imptrial trial can be had in Madera county in any action between the parties herein, and that they know of no reason why such an impartial trial for the assessment of damages in the action may not be had in said county whether heretofore commenced and now pending or which may hereafter be commenced. Affiants state, among other things, "that there is no feeling in said Madera County against the development of the west side of the San Joaquin River in favor of the development of the east side of said San Joaquin River which would in any way influence the verdict of a jury selected to try a case in Madera County; that affiant does not know of any prejudice in the County of Madera or with any persons qualified to act as jurors in said county against the west side of the San Joaquin Valley, or any prejudice against any effort of Miller & Lux to obtain more or any water from the San Joaquin River, and affiant does not believe that any such prejudice exists".

[4] There is to our minds no compelling force in the fact that the case has been three times before a jury, so far as appears by the record here. At the first trial plaintiff was non-suited and, of course, no expression of the jury was recorded. At the second trial the case went off on the issue, submitted to the jury, as to the necessity for the appropriation of the water by plaintiff. The question of damages was not considered and as to the question of necessity it turned out not to be within the province of the jury to decide and should not have been submitted to them. Two of the jurymen who dissented from the verdict made affidavit that the deliberations of the jury were free from prejudice or bias. At the third trial, for the first time, the question of damages, the only question the jury could deal with, was considered. The uncontradicted evidence given in the affidavits is that there was conflict in the testimony at the trial, some witnesses fixing the damages at more and some less than the amount awarded. Eight of the jurors who signed this verdict made affidavit that "the verdict was the result of fair and dispassionate weighing of the evidence introduced, and as instructed thereto by the court". The court doubtless considered the award excessive; and, as it had the right to do, and was justified in doing, if the award was in its opinion grossly excessive, it promptly set the verdict aside by granting a new trial. But because a jury in a damage case has given a verdict grossly excessive in amount affords little evidence of the condition of mind of the people at large. There is nothing in the record showing that there was any difficulty in obtaining qualified jurors at each of these trials. It is true that it appears from affiant Clyne's affidavit that on all previous trials the trial jurors secured from the west side of the San Joaquin river so testified on their voir dire as to disqualify them and were successfully challenged by defendant for bias in favor of plaintiff. It appeared, according to the great register of the county in 1914, there were 7,580 registered voters in the county, of whom 5,296 resided on the east side. We do not think that the showing here

made with reference to the difficulty of obtaining an impartial trial in Merced county justified the trial court in making its order in effect holding that this large body of electors was disqualified.

Mr. Clyne's affidavit does not state to what extent the newspapers referred to by him are circulated in the county, nor to what extent they were read, nor the extent of their influence upon the minds of the inhabitants of the county. Considering them in the order found in the record: The article in the "Merced Weekly Sun" of September 3, 1915, published in connection with the last trial, is but a brief outline of defendant's contention in the case, closing with the statement that the taking of water by plaintiff as claimed by it "will ruin the lands of defendants by depriving them of water, and that the damage will be a large sum". The next article is from the "Livingston Chronicle" of May 24, 1913, published during the second trial, and sets forth the great benefit which the Stevinson Canal has been to the land irrigated by it, closing as follows: "It would be hard to describe the loss and damage and the general bad results if the supply of water for irrigation should fail, for it is as air to the lungs, and none south of the Merced River will concede that a single foot of this water should be devoted to the west side of the San Joaquin." During the first trial and on January 14, 1911, this paper published quite a long article referring to "the greatest water suit ever commenced in this county". The article is but a statement of the issues and the action of the court granting a nonsuit. It contains no reference to the merits of the case. On the same date appeared another article in this journal. The nonsuit is spoken of as "a great victory for the Stevinson Colony people, users of the water-as it is a tacit admission that the colony people are getting only their rights, an opinion that nearly all Merced County people share", closing with a statement of the importance of the water being used by this colony and that: "We want more places in the county like Stevinson Colony. But we cannot get them if the water is taken from us. We need all the water we have, and then some." The other clippings from these papers are brief newspaper paragraphs referring to the case in some of its stages and stating some of the issues in the controversy. We are unable to discover in these newspaper articles, assuming that they were widely read, which is not shown, anything calculated to arouse a general feeling of bias and prejudice against plaintiff. We cannot believe that the people of Merced county are so inordinately sensitive to newspaper influence as to allow such comments as are shown to disqualify them from acting as jurors in this case.

But if we are not justified in our conclusion that the court erred to defendant's prejudice in ordering the case transferred from Merced county, we feel quite convinced on the showing made that due compliance with the statute required that it be transferred to Stanislaus or Madera county. As to these counties Mr. Clyne said: "Affiant further states that the prejudice aforesaid against the west side of the San Joaquin Valley, and the bias anu prejudice against any effort of the said Miller & Lux to obtain