Whitmore v. Utah Fuel Co. evidence on this branch of the case is somewhat vague and unsatisfactory, yet it tends to show that the water, when the well was dug, came in on the side of the well next to and in the direction of a "side canyon," and not from the underground flow of Grassy Trail creek, and the only evidence from which it might be inferred that the taking of water from this lower well interferes with the flow of the spring is that at about the time the well was dug the spring, which is two miles distant, with a high ridge between it and the well, commenced to fail, but did not go entirely dry. This court has repeatedly held that a finding of fact by a trial court will not be set aside unless it is clearly against the preponderance of the evidence. Hen4 derson v. Adams, 15 Utah 30, 48 Pac. 398; McCornick v. Mangum, 20 Utah 17, 57 Pac. 428; Hannaman v. Karrick, 9 Utah 236, 33 Pac. 1039; Dooly Block v. Transit Co., 9 Utah 31, 33 Pac. 229, 24 L. R. A. 610; Whitesides v. Green, 13 Utah 341, 44 Pac. 1032, 57 Am. St. Rep. 740; Watson v. Mayberry, 15 Utah 265, 49 Pac. 479; Blish v. McCornick, 15 Utah 188, 49 Pac. 529; McKay v. Farr, 15 Utah 261, 49 Pac. 649; Dwyer v. Mfg. Co., 14 Utah 339, 47 Pac. 311; Short v. Pierce, 11 Utah 29, 39 Pac. 474. The judgment of the trial court dismissing plaintiff's second cause of action is affirmed, but is reversed as to the first cause of action, and the cause is remanded, with directions to said court to enter judgment in favor of plaintiff for the damages which he has sustained by the diversion of the waters of the lower group of springs by the defendants; if, however, the court is unable to render judgment on the evidence introduced, to reopen the case for the taking of further testimony on this branch of the case. Costs of this appeal to be taxed against respondents. INDEX. ACTION: 1. Divorce. Where, in an action for divorce, the defendant appears, and joins issue by answer, the nature of the proceeding is thereby changed from a proceeding in rem to one in personam. Gibbs v. Gibbs, 382. 2. Equitable. A suit to set aside a transfer of corporate stock because of the transferee's fraudulent representations, for an injunction restraining persons holding the stock in trust for the transferee from disposing of the same, and for a decree compelling the delivery of the certificates representing the stock and requiring the corporation to reissue the stock to plaintiff, is exclusively an equitable action, and neither party has a right to a jury trial. Morrison v. Snow, 247. 3. Law. The complaint in an action alleged that plaintiffs were the owners and in possession of certain land; that defendants on or about a specified date, and repeatedly prior thereto, forcibly entered thereon, destroying the fences and property of plaintiffs, allowing their cattle to escape therefrom, and disturbing plaintiffs in their use thereof; that defendants are insolvent, and threaten to go on the premises and destroy the fences whenever they please—and prayed for a judgment in a certain sum for damages and that defendants be enjoined from entering on the premises. Defendants answered, denying the allegations, and averred that for more than twenty years there had been a highway over the premises, and that they entered on the premises only as was necessary in traveling on the highway. Held, to constitute an action at law, either party to which was entitled, notwithstanding the prayer for injunctive relief, to have the legal issues submitted to a jury. State v. Hart, 229. 4. Mandamus. A city furnishing relief to an indigent sick and dependent poor person, on the refusal of the county commissioners to furnish such relief, may maintain an action to recover from the county the sum expended by it on the refusal of the county commissioners to reimburse it for means necessarily expended, and need not resort to mandamus against the commissioners. Ogden v. Weber, 129. (500) [Utah 26 ACTION FOR WRONGFUL DEATH. See DEATH. ADMISSION. See EVIDENCE, 1. ADVERSE CLAIM. See MINES AND MINING, 1, 2, 3. ADVERSE POSSESSION: 1. Burden of Proof. Where title to land is claimed by adverse possession, the burden of proving all the elements necessary io constitute such title rests upon him who asserts the claim. Dignan v. Nelson, 186. 2. Elements. Under 2 Compiled Laws 1888, section 3137, subdivision 3, providing that in no case shall adverse possession be considered established unless it is shown that the land has been occupied and claimed for seven years continuously by a party who himself or whose predecessors have paid all taxes levied thereon according to law, title by adverse possession must be founded on actual, open, and notorious possession, with an intention to claim as owner and against the rights of the true owner, continuing for the time prescribed, coupled with the payment of all lawful taxes by the claimant. Id. 186. 3. Findings Sufficient to Sustain. In ejectment, brought in 1899, the court found that defendants since 1880 had remained in open, notorious, and exclusive adverse possession of the property, and had claimed it adversely to plaintiffs, and to all the world, and had paid all the taxes levied on the property in their names. It also found that for more than seven years last past defendants had been in open, notorious, and exclusive adverse possession of the property, and had paid all taxes thereon adversely to plaintiffs, and without any privity of estate in any manner with them. Held, that the findings sustained a judgment for defendants, based on their claim of title by adverse possession. Id. 186. 4. Limitation of Action. Ejectment by a minor heir is barred by the failure of the administrator, who is also the heir's guardian, to sue within the period of limitations prescribed. Id. 186. AGENCY. See PRINCIPAL AND AGENT. AMENDMENTS. See PLEADING AND PLEADINGS, 1, 2; PRACTICE, SUPREME COURT, 1. ANSWER. See PLEADING AND PLEADINGS, 3, 4. APPEAL AND ERROR. See PRACTICE, SUPREme Court. ATTORNEY AND CLIENT: 1. Duties of Attorney. Under Revised Statutes, section 113, subdivisions 2, 4, 6, providing that it is the duty of an attorney to maintain the respect due to courts of justice and judicial officers, to employ for the purpose of maintaining causes confided to him such means only as are consistent with truth, and to abstain from all offensive personalities, an attorney, as a party to an action, is prohibited from knowingly making defamatory charges against a judge. Morrison v. Snow, 247. 2. Revocation of License. The court, under the express provisions of Revised Statutes, section 120, has the power to revoke the license of an attorney violating the provisions of the statute regulating attorneys and counselors. Id. 247. BILLS AND NOTES: Parol Evidence. Where, in an action on a note, defendant admitted its execution, parol evidence that it was not given for a loan, as plaintiff contended, but to secure performance of defendant's verbal agreement to purchase certain mining stock for plaintiff, and was to be surrendered on delivery of such stock, and that defendant had fully performed such agreement, was not objectionable as tending to vary or contradict the terms of the note. Clark v. Ducheneau, 97. BURDEN OF PROOF. See ADVERSE POSSESSION, 1; ELECTIONS, 2; NEGLIGENCE, 1, 8; TITLE AND OWNERSHIP, 5. NEW TRIAL, 1. Wright v. Union Pac. R. R. Co., 22 Utah 338.. 229 CASES FOLLOWED: A American Oak Leather Co. v. Bank, 9 Utah 87..... 192 CASES FOLLOWED.-Continued. с Condon v. Leipsiger, 17 Utah 501. Coulam v. Doull, 4 Utah 267..... Croco v. Railroad Co., 18 Utah 311; 44 L. R. A. 285.. D Deseret Irr. Co. v. McIntyre, 16 Utah 403.... .376, 386 349 161 450 375, 376, 379, 386, 390, 391, 433 Dixon v. Ricketts, 26 Utah 215...... 349 Fields v. Daisy Gold Min. Co., 26 Utah 373.... 388, 398, 404, 405, 414, 433 G Gibbs v. Gibbs, 26 Utah 382. H 380, 381, 414, 428, 433 Hannaman v. Karrick, 9 Utah 236.. Henderson v. Ogden City Ry. Co., 7 Utah 199.. I Irrigation Co. v. Vickers, 15 Utah 374... J 499 499 481 44 24 486 Jenkins v. Jensen, 24 Utah 108.... ... 191 Jenkins v. Mammoth Min. Co., 24 Utah 513....175, 177, 179, 457 K Kennedy v. Railroad Co., 18 Utah 325.... Kimball v. Grantsville City, 19 Utah 368; 45 L. R. A. 628 161 123, 396 Konold v. R. G. W. Ry. Co., 16 Utah 151........375, 379, |