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plaintiff. Upon the return of this verdict, the defendant's counsel filed a motion in arrest of judgment, on the ground that the court had no jurisdiction of the subject-matter of the action, for the reason that the complaint failed to show that at the commencement of this action the property was detained in Columbia or Garfield counties, for which said court was holden, or elsewhere. The court below sustained the motion, and subsequently, during the term, a motion was made by defendant's attorney to dismiss the action, which motion was likewise sustained by the court. This action of the court in sustaining the aforesaid motions is assigned

as error.

The return of the sheriff in the transcript before us shows that the property was found and taken by him within the jurisdiction of the court, to wit, in Garfield county aforesaid. We are of opinion that an allegation of venue in the complaint was essential to give the court jurisdiction of the subject-matter; but although no mention appears to have been made during the proceedings in the court below of the sheriff's return, the court was bound to have knowledge of the record, and that record discloses that the property was within the jurisdiction of the court. The substantial rights of the defendant, therefore, were not affected by the defect in the complaint, and the court should have disregarded it: Code of 1881, sec. 113.

Let the judgment of the court below, in arresting the judgment and dismissing the action, be reversed.

GREENE, C. J., concurred.

HOYT, J., concurring. I concur in the result, but am not prepared to hold that an allegation of venue in cases of this kind is essential to jurisdiction.

BENNETT v. UNITED STATES.

Filed August 6, 1883.

AN APPEAL FROM A JUDgment RendERED IN FAVOR OF THE UNITED STATES can not be perfected without service of notice upon the United States. Such service should be made upon the United States attorney; service upon his assistant is not sufficient.

MOTION to dismiss writ of error.

The opinion states the facts.

Struve & Haines, for the plaintiff in error.

J. B. Allen, United States attorney, and C. H. Hanford, assistant United States attorney, for the defendant in error.

HOYT, J. Whatever rule of practice applies in cases of this kind, it is necessary to the perfecting of an appeal that there should have been service upon the United States; and the United States attorney for this territory is the only representative thereof upon whom service could have been made, and service upon his assistant was not service upon him, and could not therefore bind the said United States, and the writ of error must be dismissed for want of service of notice thereof on the adverse party. It is proper for us to state further that, in our opinion, the legislative assembly of this territory has failed to prescribe any rule of practice applicable to cases to which the United States is a party, and that, in the absence of such legislation, the rules of practice as they existed at common law, so far modified as to make them applicable to our institutions and condition, govern in these cases.

GREENE, C. J., and WINGARD, J., concurred.

CITY OF WALLA WALLA v. MOORE ET AL.

Filed August 6, 1883.

A DEFENDANT WHO CONSENTS TO TRY A CASE WITHOUT A JURY THEREBY WAIVES his right to afterwards object that the plaintiffs' remedy was in law rather than in equity.

DESCRIPTION BY REFERENCE TO MAP-ESTOPPEL.-One who records his claim to certain real estate, describing the same as bounded by a certain street as shown upon a recorded map, and who afterwards receives a deed to such property by the same description, is estopped to deny the existence of the street as shown by such map.

APPEAL from a judgment of the district court. The opinion states the facts.

Langford & Anders, for the appellants.

Allen and Thompson, for the appellees.

HOYT, J. This was a suit in equity to have a certain building declared a public nuisance, and have it abated as such, and was brought by the city of Walla Walla against the defendants, who were in possession of said building.

A large number of questions have been raised and ably argued by counsel, but as the court finds difficulty in harmonizing its views as to some of the most important of them, we have concluded to pass upon only such as are necessary for the purposes of this case. The first objection urged by the appellants to the proceedings below is, that the court overruled their demurrer to the complaint, which they claim should have been allowed, because the complaint did not show the plaintiff entitled to equitable relief, but we think that the said city in prosecuting this action was acting for the public at large, and was therefore, for the purposes of said suit, clothed with all the attributes of sovereignty; besides, the defendants, by consenting to try the case without a jury, in our opinion, thereby waived the right to afterwards object that the action was in equity rather than at law.

The principal question in the case was as to whether the land upon which the said building was situated was a part of Second street in said city or the private property of the defendants. The only title claimed by defendants was claimed from one D. S. Baker, and if the said D. S. Baker was not in a situation to assert his title to said land as against the public, at the time he conveyed the land, it will follow under the circumstances of this case that defendant will occupy the same situation.

It is conceded, or is sufficiently shown, that the disputed land is a part of Second street, as it appears upon the recorded plat of said village, and the decisive question is as to whether said Second street, as it appears upon said plat, must be taken to be correct, and for the purposes of this case we think it must, as the said D. S. Baker had by his acts so far adopted said plat in reference to the particular portion thereof affecting this question that he will not now be allowed to make any claim in opposition thereto. As early as 1861 he caused lots 1 and 10, in block 12, to be recorded on the city records of said city in his name, describing them in his claim therefor as such according to the recorded plat, upon which plat said Second street appeared as bounding said lot i on the side, and covering the very property in question in this suit. He afterwards made to said city a verified claim to a part of the same lots, describing said lot 1 as bounded by Second street, along that very

boundary which in fact was bounded by the land in question, and upon his said claim received from it a deed with a like recognition of the disputed territory as a part of Second street; these acts, and some others of similar nature appearing in the record, in our opinion, estop him as above stated. Whence it follows, that, as between the parties to this suit, the building in question is in said Second street, and that the judgment of the court below so deciding and decreeing its abatement must be affirmed, and it is so ordered. Let the cause be remanded, with instructions to the court below to carry into effect its said judgment and decree. GREENE, C. J., and WINGARD, J., concurred.

SUPREME COURT OF CALIFORNIA.
No. 9,352.

CLARKE ET AL. v. HUNDLEY, Judge, etc.

Department Two. Filed March 3, 1884.

A PLAINTIFF CAN NOT DISMISS AN ACTION OF HIS OWN MOTION after the defendant has answered and averred matters upon which affirmative relief is asked, growing out of the transactions set forth in the complaint.

APPLICATION for a writ of mandamus. The opinion states the facts.
George Cadwalader, for the petitioners.

J. D. Goodwin, for the respondent.

MYRICK, J. This is an application for a writ of mandate requiring the respondent, as judge, and the court in which he presides, to proceed with the trial of a case.

Eleanor Murdock, as administratrix of her deceased husband, commenced an action against the petitioners herein, as defendants, for an accounting, by reason of matters set forth in her complaint, and to obtain a decree that the said defendants convey to her certain real estate which had been conveyed to them by plaintiff's intestate as security for certain moneys; alleging the amounts received by the defendants and the value of use and occupation to be sufficient to pay off the indebtedness. The defendants answered, averring further advances, and the payment of expenses by them of more than the amounts received, claiming a balance and the original amount loaned to be still due, and asked for an accounting, and that the real estate conveyed as security as above mentioned be sold to satisfy the amount due them. This action was pending in the court in which the respondent presides. While so pending, and before October 10, 1883, the cause was set down for trial on the twenty-ninth of October, 1883. On said tenth of October the plaintiff's attorney filed with the clerk a paper in which it was stated that "the plaintiff dismisses the above-entitled action at the costs of said plaintiff, and the clerk of said court is hereby requested to enter such dismissal in his register of said actions." He also filed another paper, in which he moved the court to dismiss the action at plaintiff's cost, without prejudice. Notice of the motion was given, and a hearing thereon was had October 18th, and denied. No order for or relating to the dismissal appears on the register, but in the blotter are entries of items of clerk's

costs, including the papers above referred to. On the twenty-ninth of October, the day on which the cause had been set down for trial, the parties appeared by counsel, and the plaintiff objected to the trial of the cause proceeding, on the ground that she had dismissed the action by filing the paper first above referred to. The court declined to proceed with the trial, for the reason that the action of the plaintiff had dismissed the suit, and there was no cause pending before the court.

We are of opinion that the plaintiff did not, and that she could not, dismiss the action of her own motion. The defendants had averred matter upon which they sought affirmative relief, growing out of the transactions set forth in the plaintiff's complaint: See C. C. P., sec. 581, subd. 1.

Let the writ issue as prayed for.

SHARPSTEIN and THORNTON, JJ., concurred.

No. 9,187.

SHINN v. CUMMINS.

Department Two. Filed Murch 6, 1884.

FAILURE TO INDORSE THE NAME OF THE PLAINTIFF'S ATTORNEY ON THE BACK OF THE SUMMONS does not invalidate the same when such name is written on the face of the summons.

THE PENDENCY OF A MOTION TO VACATE A PRETENDED SERVICE OF SUMMONS does not extend the time specified therein for answering.

APPEAL from a judgment of the superior court for Lassen county, entered in favor of the plaintiff. The opinion states the facts.

Goodwin & Kelly, for the appellant.

C. McClaskey, for the respondent.

SHARPSTEIN, J. Appellant insists that it is essential to the validity of a summons that the name of the plaintiff's attorney be indorsed on it. The code provides that "the name of the plaintiff's attorney must be indorsed on the summons:" C. C. P., sec. 407. There was not in this case a literal compliance with that provision. The name of the plaintiff's attorney appears on the face and not on the back of the summons. Therefore it is not indorsed on the summons. And if we could see that the defendant might possibly be prejudiced by this circumstance, it would be our duty to reverse the judgment. But we can not. The object of the law doubtless is to have the name of the plaintiff's attorney indorsed on the summons, so as to inform the defendant who such attorney is. While it is advisable in all cases to literally comply with the provisions of the code, nothing short of a substantial departure therefrom can properly be held to be fatal to a proceeding under it. "Its provisions and all proceedings under it are to be liberally construed, with a view to effect its objects and to promote justice:" Id., sec. 4.

The pendency of the defendant's motion "to dismiss, vacate, and set aside the pretended service of summons and copy of complaint" did not extend the time specified in the summons for answering the complaint. When the default was entered, there had been no appearance in the case by the defendant, and we are unable to discover any ground on which the judgment should be reversed.

Judgment affirmed.

MYRICK and THORNTON, JJ., concurred.

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WHERE the prior appropriation extends to all the water flowing in the stream at the point of diversion, the appropriator may enlarge his ditch at pleasure, and so increase the amount actually diverted, and other parties whose claims to the stream are subsequent can not complain of such enlargement.' Where the prior appropriation extends only to a portion of the stream, and is determined by the amount actually diverted, the measure of such appropriation and of the appropriator's right seems to be the quantity of water which could actually be carried by his ditch in the size and condition in which it was when the subsequent appropriation above him on the stream was made. The rule under these circumstances is thus stated by the supreme court of California: "He is entitled to have the water [of the stream flowing down to his ditch] undiminished in quantity, so as to leave sufficient to fill his ditch as it existed at the time the subsequent appropriations above him were made." The supreme court of Nevada has formulated the rule in somewhat more precise terms: "It seems that the quantity of water appropriated is to be measured by the capacity of the ditch or flume at its smallest point; that is, at the point where the least water can be carried through it." It may well be doubted, I think, whether there is any material difference between

James v. Williams, 31 Cal. 211. In Feliz v. City of Los Angeles, 58 Id. 73, it was held that the city had acquired a right to all the water of a river, and that plaintiff's use was permissive, not adverse.

2 Bear River etc. Co. v. New York M. Co., 8 Cal. 327.

Ophir Silver M. Co. v. Carpenter, 6 Nev. 393; 4 Id. 534. Also in Barnes v. Sabron, 10 Id. 217, the court held that where the prior appropriator of a stream has constructed ditches in order to irrigate his land, if the capacity of his ditches is No. 12-1

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greater than is necessary to irrigate his farming land, he must be restricted to the quantity needed for the purposes of irrigation, of watering his stock, and of domestic uses; but if the capacity of his ditches is not more than sufficient for those purposes, then, under the facts of this case, no change having been made in the ditches since their construction, and no question as to the right of their enlargement being involved, he must be restricted to the capacity of his ditches at their smallest point.

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