BUCK, J. Appeal from an order overruling motion for a new trial. This is an action for damages by Diego Riborado et al., Plaintiffs, against The Quang Pang Mining Company, Defendants, for an alleged injury by defendants to the ditch and dam of plaintiffs. The plaintiffs' ditch, for about 1,000 feet, is upon the mining claim of defendants. The plaintiffs' dam or dams, built for the purpose of turning water from Sharky creek into it, are situated off and outside of the Discovery Claim, owned and worked by defendants, upon old diggings, washed out and abandoned. The defendants' claim, known as the "Discovery Claim," is the prior location, and the plaintiffs' ditch was dug across it without any express license. It was rather tolerated than permitted by defendants' grantors, with the understanding that defendants should work their claim "just as if no ditch was there." The ditch of plaintiffs was commenced in 1868, and they claimed the right to put it across defendants' claim, and maintain it there, by virtue of the following miners' regulation adopted in 1866, to-wit: "Each claim shall have the right to drain through any other claim or claims, but shall confine his dumpings to his own ground." The appellants claim that this regulation was void for non-user. There was no evidence that said regulation had either fallen into disuse or had been superseded by any other. On the contrary, the evidence shows that the mining district is still in existence, and that the two claims in dispute had been worked almost, if not quite, continuously all the time since said ditch was made. If there is any custom or regulation modifying this regulation of 1866, the defendants should have proven it on the trial. King v. Edwards, 4 Morr. 484. In the absence of such proof, the written regulation, once established, is presumed still to exist and be in force.

In the assignment of errors it is claimed that the fifth finding is unsupported by the evidence. That finding is as follows: "That in 1879 the defendants washed out what was called the lower dam of plaintiffs, and set fire to and burned the upper dam." The error to this finding is alleged to be that the evidence shows that the plaintiffs' lower dam was washed out in 1878, and never afterwards repaired; that the dam burned was the remnant of the old dam; and that there is no evidence of any damage to plaintiffs from said burning. After a careful study of the evidence we are unable to say that there is error in this finding. The evidence brought up is in such a confused condition, abbreviated and often in broken sentences, wanting substantives and predicates, that it is quite impossible to determine as to many matters given in evidence. It is admitted upon the argument that there was a good map of the grounds in dispute in the court below. This map is not here. The locations of these dams was explained to the court below by reference to the map, which is not in the transcript. It is therefore impossible for us to say that the finding was not supported by evidence. To the further objection to this finding, to-wit, that there is no evidence of damage from said burn

ing, it is sufficient to say that the evidence of plaintiff sets the damage of 1879 at $350. This damage resulted from cutting out the dam, and loss of time.

The second error assigned is that the seventh finding, to-wit, that in 1881 defendants washed out plaintiffs' dam and filled plaintiffs' ditch with tailings to such an extent as to ruin their season's work, is contrary to the pleadings and unsupported by evidence. The evidence of plaintiff upon that subject was: "In 1881 the pole flume so placed filled up the ditch level with sand. They washed away everything. Lost all the summer's water." "The pleadings allege that in 1881 the defendants wrongfully and unlawfully cut and injured the ditch and dam of plaintiff.” We think the finding that defendants washed out the dam and filled up plaintiffs' ditch to such an extent as to prevent their using it for a year is fairly responsive to the allegation that they cut and injured it. The appellants assign as error the conclusion of law that the defendants are liable to plaintiffs for the amount of damages unnecessarily done by them in the years 1879, 1880, and 1881. This finding is general, and sustained by the fifth finding of fact, to-wit: That in the year 1879 defendants washed out what was called the lower dam of plaintiffs and set fire to and burned the upper one. Allowing, as was claimed upon the argument, that the evidence shows that the lower dam was washed out in 1878 and never afterwards replaced, which does not seem clear to us, yet the burning of the upper dam would be sufficient to sustain the finding. This dam was not on the Discovery claim. It was on ground abandoned and worked out and open to all. There is some pretense that defendants were washing the old tailings, but there is no evidence that they had any claim there that would justify their washing away or destroying plaintiffs' dam.

It is also claimed that the following conclusion of law is erroneous, to-wit: The plaintiffs have the right to convey said water over the mining ground of defendants, by ditch and flume, to their mining ground below; subject, however, to the right of defendants to work their mining ground over which said ditch runs, doing no unnecessary damage; subject, also, to the defendants' right to recover damages from plaintiffs for such easement, if any occurred. We think this general proposition of law is clearly sound. The mining regulation quoted above has the force of law, and section 486 of our Code of Civil Procedure makes it evidence in actions concerning mining claims. It is claimed that the law as laid down by the court was irrelevant, and not responsive to the findings of fact. Possibly this may be true, yet we can see no injury which its enunciation has done the defendants. Admitting that the sixth and seventh findings do not bring the case within this law, still we are of the opinion that the fifth finding of fact sustains the conclusion of law, and the judgment is therefore affirmed.

MORGAN, C. J., and BRODERICK, J., concurring.

(2 Idaho [Hasb.] 141)

SCHENK and others v. BIRDSEYE and others.

Filed March 2, 1885.

1. PRACTICE-JUDGMENT ENTERED IN VACATION.

Under our civil practice act, a judgment or order of the district court may be entered in vacation.

2. SAME-FOREIGN JUDGMENT.

Complaint considered, and the one herein held sufficient to support the judg

ment.

Appeal from the Third judicial district, Lemhi county.
Charles A. Wood, for appellants.

Johnson & Onderdonk, for respondents.

BY THE COURT. This is an appeal from a judgment entered against the defendant Joseph W. Birdseye in Lemhi county. The record brought here shows that the cause was heard and evidence taken in open court, and that, by agreement of parties, the cause was taken under advisement, to be decided in vacation; and that it was so deter mined, and the findings and judgment signed by the trial judge were filed and entered by the clerk. This is now claimed to be error. We think section 29 of our civil practice act fully authorizes this proceeding. Counsel for appellant contends that the complaint is not suffi cient to support the judgment. The action is founded on a judgment recovered against this defendant in the city court of Brooklyn, in the state of New York. As appears from the complaint herein, the judgment sued on was joint as to Birdseye and others, and several or personal as to Birdseye. The complaint alleges that Birdseye had been personally served by summons in the city of Brooklyn, and that he appeared in the action by counsel, and that, thereafter, judgment was duly given. It is also alleged that the city court of Brooklyn was a court of record, and that, under the constitution and laws of the state of New York, it had jurisdiction of the subject-matter of the action. This seems to us sufficient in this respect; and, as there is no bill of exception or statement, there is no other question for consideration.

Judgment affirmed.

MORGAN, C. J., and BRODERICK and Buck, JJ., concurring.

(66 Cal. 473)

SUPREME COURT OF CALIFORNIA.

TAPE V. HURLEY. (No. 9,916.)

Filed March 3, 1885.

1. PUBLIC SCHOOLS-RIGHT OF CHINESE CHILDREN TO ADMISSION TO. Children between the ages of six and twenty-one years, though of Chinese parentage, who were born and live in the city and county of San Francisco, are entitled to admission in the public schools of the district in which they reside. 2. STATUTORY CONSTRUCTION-EFFECT OF EXPLICIT LAWS NOT TO GUIDE.

When a law is plain and unambiguous, and the intention of the legislature is clear, there can be but one construction, and the fact that the consequences of the law are civil can only be avoided by a change of the law itself by the legislature and not by judicial action.

3. PUBLIC SCHOOLS-MANDAMUS-PROPER PARTIES.

In a proceeding by mandamus to compel a teacher to admit a child to a class in the public schools, the superintendent of schools and the board of education are not proper parties.

4. SAME-BOARD OF EDUCATION-RESOLUTION OF, AS JUSTIFICATION OF TEACHER. A board of education has power to make and enforce all rules and regulations not contrary to law, and teachers cannot justify a violation of law on the ground that a resolution of the board of education required them to do so. In bank. Appeal from the superior court of the city and county of San Francisco.

Horace G. Platt, for appellant.

Wm. F. Gibson, for respondent.

SHARPSTEIN, J. The main question in this case is whether a child between six and twenty-one years of age, of Chinese parentage, but who was born and has always lived in the city and county of San Francisco, is entitled to a ission in the public school of the district

in which she resides. The language of the Code is as follows:

"Every school, unless otherwise provided by law, must be open for the admission of all children between six and twenty-one years of age residing in the district; and the board of trustees, or city board of education, have power to admit adults and children not residing in the district whenever good reasons exist therefor. Trustees shall have the power to exclude children of filthy or vicious habits, or children suffering from contagious or infectious diseases." Pol. Code, § 1667.

That is the latest legislative expression on the subject, and was passed as late as 1880. Prior to that time the first clause of the section read: "Every school, unless otherwise provided by special statute, must be open for the admission of all white children between five and twenty-one years of age, residing in the district."

As amended, the cause is broad enough to include all children who are not precluded from entering a public school by some provision of law. And we are not aware of any law which forbids the entrance of children of any race or nationality. The legislature not only declares who shall be admitted, but also who may be excluded, and it does not authorize the exclusion of any one on the ground upon which alone the exclusion of the respondent here is sought to be justified. v.6p,no.3-9

The vicious, the filthy, and those having contagious or infectious diseases may be excluded, without regard to their race, color, or nationality. This law must be construed as any other would be construed. "Where a law is plain and unambiguous, whether it be expressed in general or limited terms, the legislature should be intended to mean what they have plainly expressed, and consequently no room is left for construction." U. S. v. Fisher, 2 Cranch, 358, 399. "When the law is clear and explicit, and its provisions are susceptible of but one interpretation, its consequences, if evil, can only be avoided by a change of the law itself, to be effected by legislative and not judicial action." Bosley v. Mattingly, 14 B. Mon. 72. This rule is never controverted or doubted, although perhaps sometimes lost sight of. In this case, if effect be given to the intention of the legislature, as.indicated by the clear and unambiguous language used by them, respondent here has the same right to enter a public school that any other child has. It is not alleged that she is vicious or filthy, or that she has a contagious or infectious disease. As the legislature has not denied to the children of any race or nationality the right to enter our public schools, the question whether it might have done so does not arise in this case.

We think the superintendent of schools was improperly joined as a defendant in this action, and that the court properly dismissed the action as to the board of education. In Ward v. Flood, 48 Cal. 36, the action was against the teacher alone. That it was properly brought seems to have been conceded. The board of education has power "to make, establish, and enforce all necessary and proper rules and regulations not contrary to law," and none other. St. 1871-72, p. 846. Teachers cannot justify a violation of law on the ground that a resolution of the board of education required them to do so. The judgment must be modified so as to make the writ run against the defendant Hurley alone. In other respects, it is affirmed.

We concur: THORNTON, J.; MYRICK, J.; MCKEE, J.; MCKInstry, J.; Ross, J.; MORRISON, C. J.

(66 Cal. 476)

DOOLAN, Adm'r, etc., v. MCCAULEY and others. (No. 8,964.)

Filed March 3, 1885.

1. ESTATES OF DECEDENTS-ADMINISTRATOR'S POWER TO LEASE REAL ESTATE. The administrator of a decedent's estate may, during the period of administration, lease the real property belonging to the estate, but any lease for a definite term is subject to be terminated by the final distribution of the estate and the discharge of the administrator.

2. ADVERSE POSSESSION-HOLDING UNDER PAROL LEASE AS.

Holding of possession of real estate under a parol contract of lease for 10 years, the conditions of which have been fully performed by the lessor, will not be presumed to have been an adverse holding.

Department 1. Appeal from the superior court of the city and county of San Francisco.