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ment given in the justice's court, the sole point relied upon by the plaintiff here is that the complaint on which that judgment was rendered was filed on a legal holiday, and that, therefore, there was in contemplation of law no filing, and as a legal consequence that all subsequent proceedings in the action were utterly void and of no effect. There is in the complaint no averment, nor is there anything in the record to indicate, that the debt for which judgment was given in the justice's court was not justly due from the defendant to the plaintiff in that action. It is not pretended that judgment there was obtained by means of any fraud or surprise, nor that the present plaintiff had any defense to that action upon the merits. It is only claimed that the judgment there given was void because the complaint in the action was filed on a day that had been by the governor of the state declared a legal holiday, of which, however, the court below finds the justice of the peace and the plaintiff in the case were in fact ig. norant. The case, in truth, is one in which a party asks a court of equity to relieve him of a judgment rendered by a court of law for a debt which he does not deny, but impliedly, at least, admits owing, and which judgment was rendered in an action in which he bad ample opportunity to make the point he now relies on, but of which he negligently omitted to avail himself. Under such circumstances it is clear that a court of equity should withhold relief. Gregory v. Ford, 14 Cal. 142, and cases there cited. As respects the sale of the land in one parcel, it appears, as has already been said, that the plaintiff here made a motion in the justice's court to have the sale set aside on the ground that the property was not separately sold, which motion was denied; but why, does not appear. Nothing to the contrary appearing, the presumption is that the motion was properly denied. If aggrieved, he could have had the action of the justice's court reviewed by the superior court on appeal from the judgment. Code Civil Proc. $ 980.

Judgment reversed, and cause remanded.

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Filed February,


Any rights which a riparian proprietor would have to the water of the creek which touched his land, if his settlement was after the act of 1866 took effect, would be subject to the previously confirmet appropriation of the water.

In the absence of any finding as the order in which the persons interested in the appropriations of the water should use it, no decree ean be entered in favor of the plaintiff which would not prejudice the other owners. The cause must be reDiunded, with directions that all claimants of the water rights be made partics.

Department 1.

Byron Waters, for appellant.

Satterwhite de Curtiss, for respondent.

McKINSTRY, J. The complaint alleges that plaintiff is the owner of "all the flow" of Lytle creek. The court below found that before the end of 1856 all the waters of Lytle creek had been appropriated by several persons, each acting separately, and claiming to appropriate a portion of the waters, and the waters thus appropriated by the various persons who appropriated the same, and those claiming to be their successors, were used "by turns separately and consecutively, each upon his seperate land for a certain length of time, measured by hours and minutes, under the regulations of the board of water commissioners of this (San Bernardino) county, prescribing how often and the length of time each should be entitled to use the same, varying in time according to the extent of interest each held in the water so appropriated,” etc. “Such separate interests in the water were held by the individuals separately, and sold, transferred, or abandoned by them respectively at their will.” That plaintiff was the owner, through mesne conveyances and transfers of interests, of a portion of the waters, of Lytle creek, appropriated as aforesaid, “equal in amount to the use of all the waters of said creek one hundred and thirty-two hours and nineteen minutes out of each and every three hundred and seventytwo hours." That defendant A. G. Perdew, in 1867, "settled upon a tract of government land near said Lytle creek, and within the low of the same,” and “diverted and appropriated from said Lytle Creek,” etc. No question as to the use of the waters of a stream by riparian proprietors is presented by this record. There is nothing in the pleadings or findings to indicate that when all the waters of Lytle creek were appropriated, any of the lands by or through which the creek flows had passed into private ownership. It must be presumed, therefore, that such lands were public lands of the United States, and the rights to the waters of Lytle creek acquired by prior appropriation were confirmed by the act of congress of 1866. 14 U. S. St. 218. The court found that the settlement on government land by defendant, (conceding that this tract touched the creek,) was made after the act of 1866 took effect. Any rights which he might acquire, therefore, from the government would be subject to the previously confirmed appropriations of the water.

The plaintiff and the other persons claiming rights in the waters of the creek derived from the original proprietors were not tenants in common. The convention inter sese of the owners of the use of all the waters appropriated, by or under wbich the water was used for recurring periods of time by eacn, did not make them tenants in common. Plaintiff had a separate title to the use of all the water 132 hours and 19 minutes of every 372 hours. It is manifest that, in the absence of finding or evidence as to the order in which the persons interested in the appropriations of water used it, or as to the times when the periods during which the plaintiff would be entitled to the exclusive use of all the water would recur, no decree could be entered fixing the rights of plaintiff, or prohibiting the defendant from inter. fering with plaintiff's rights. It is equally manifest that no decree determining the rights of plaintiff or protecting them against the acts of defendant could be entered which would not prejudice the other owners deriving from the prior appropriators. Suppose, for example, the court had decreed that plaintiff would be entitled to the exclusive use of all the waters of the creek for a period of 132 hours and 19 minutes, commencing at 12 o'clock m. of the first day of October, 1883, and to an exclusive use of the waters for a like period commencing 239 hours and 41 minutes after the expiration of the first period, (and so on,) such decree would not conclude the rights of the other owners of the use, and the result might be that the defendant would only be enjoined for periods to which others than the plaintiff would be entitled to the use of all the waters. Hence, it was the duty of the court to order the other persons interested in the use of the waters to be brought in as necessary parties to the controversy. Code Civil Proc. 389.

Judgment reversed, and cause remanded, with direction to the court below to order that all persons claiming or owning rights to the use of any of the waters on Lytle creek be made parties to the action.

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We concur: MCKEE, J.; Ross, J.


Filed February 11, 1884.

The United States statute requiring certain work to be dono and improvements made each year upun mining claims, applies to placer claims as well as lodo or vein claims.

In Bank.

S. B. Davidson and C. W. Cross, for respondent.

P. Vanchief, for appellant.

By The Court. When this case was before department 2 of this court (10 Pac. C. L. J. 572) it was held that that provision of the Revised Statutes of the United States requiring a certain amount of

work to be performed or improvements made during each year on each mining claim located after the tenth day of May, 1872, and until a patent issues therefor, applies as well to that class of claims known as placer claims as to the class known as lode or vein claims. We are satisfied of the correctness of that construction of the statute. And that it is the view taken by the supreme court of the United States is evident from the recent decisions by that court in the cases entitled Jackson v. Roby and Roby v. Jackson, 3 Sup. Ct. Rep. 301, as well as from the opinion in Smelting Co. v. Kemp, 104 U. S. 536.

Judgment reversed and cause remanded, with instructions to render judgment for defendant as to the lands within its location.

SCHWARTZ v. Palm and others.

Filed February 12, 1884.

If a decree of foreclosure should order the sale of a greater or legg Interest than that described in the complaint and mortgage, it is erroneous, and should be cor. recied upon motion. Cluse v. Christiunsen, 41 Cal. 256.

Department 1.

Geo. Cadawalader and W. B. Treadwell, for respondent.

Young & Young and T. S. Sprague, for appellants.

McKEE, J. Action by a mortgagee against a mortgagor, and a subsequent purchaser from him of the mortgaged premises, to foreclose a mortgage given to secure payment of a promissory note. Default, judgment, and a decree of foreclosure were entered in the case. From the decree and order denying a motion to amend it, the subse. quent purchaser has appealed, upon the ground that the decree exceeds the relief demanded by the plaintiff in his complaint. Section 580, Code Civil Proc. A decree of foreclosure should direct a sale of the particular estate or interest of the mortgagor in the mortgaged premises, as the same has been described in the mortgage, because it is that, and only that, which has been mortgaged as security for the payment of the mortgage debt. If such a decree directs the sale of any greater or less estate or interest than that described in the complaint and mortgage, it is erroneous, (Chase v. Christiansen, 41 Cal. 256,) and should be corrected on motion. In this case the mortgaged premises

. was described in the complaint and mortgage as : “The one undivided fourth interest, being all the interest which the mortgagor owns in two certain tracts of land in Yolo county, state of California, described as

swamp land surveys numbers 283 and 284, of swamp

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and overflowed lands in Yolo county, bounded,” etc.; and the plaintiffs asked that "the usual decree be made for the sale of said premises described in said mortgage. The decree ordered a sale of the mort. gaged premises as hereinafter described; but after describing the same as in the complaint and mortgage, it added the following: “Including herein all the interest which the mortgagor had in each and both of said tracts of land on the twenty-sixth day of July, 1878, when said mortgage was given.". In that particular the decree went beyond the relief to which the plaintiff was entitled. The mortgage was only upon an undivided one-fourth interest in the two tracts. It may be that the mortgagor had a greater interest, although he said he had

If he had he did not mortgage it, and it passed to the subsequent purchaser unaffected by the mortgage. At all events, the court could not, by its decree, subject to sale a greater interest than was in fact mortgaged. The motion made by the defendant, Carrol, to correct the decree should have been sustained.

Order reversed and cause remanded, with direction to the court below to modify its decree as requested; and when so corrected the decree will be affirmed.

We concur: MOKINSTRY, J.; Ross, J.


Filed February 12, 1884.

A court should grant a nonsuit after all the evidence is in. if a verdict for the plaintiff would have to be set aside as not supported by the evidence; but a motion for a nonsuit should rarely be resorted to after the defendant's evidence is in.

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Department 1.

C. R. Barry and J. F. Elison, for appellant.

Chipman & Garter, for respondent.

BY THE COURT. In Geary v. Simmons, 39 Cal. 224, it was held, a court is justified in granting a nonsuit, after the evidence on both sides has been heard, in a case where, if the motion had been denied and a verdict found for the plaintiff, it would have been set aside as not supported by the evidence. If the case before us had gone to the jury upon the evidence in the transcript, it would have been the duty of the court to set aside a verdict in favor of the plaintiff, on motion. It comes within the rule laid down in Geary v. Simmons. We think it proper to say, however, that the practice of moving for nonsuit

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