appellants, that he went back to the house for the purpose of qualifying himself to file a new declaration, still it does not follow that his residence was not actual. He had taken up his abode in the house, and had slept there one night. His wife and child did not go with him, but it was not absolutely necessary that they should. One may have an actual residence in a house, though his family be away, and be take his meals elsewhere. Nor is the fact that he had slept there but one night, decisive of the question. After making an actual residence upon property, one may file a homestead upon it at the end of a day, as well as at the end of a month or a year. So one may file and maintain a homestead upon property which is partially rented out, or used for other purposes than his residence. Ackley v. Chamberlain, 16 Cal. 181; Phelps v. Rooney, 9 Wis. 70.

It is also claimed for the appellants that the south half of the lot, back as far as the poultry-yard fence, was not impressed with the character of homestead, and, to that extent at least, the court erred in its conclusions. As has been seen, the whole lot was but 62 feet wide, and was all inclosed. It was divided by a fence running back to the poultry yard, and the house and out-buildings were upon the northern half. Still the court thought it all constituted the homestead and was exempt from forced sale, and we cannot say its conclusions were not justified by the facts.

On the whole, we think the judgment should be affirmed.

We concur: SEARLS, C.; FOOTE, C.

BY THE COURT. For the reasons given in the foregoing opinion the judgment is affirmed.

(69 Cal. 207)

SAYRE v. CITIZENS' GAS-LIGHT & HEAT Co. and others. (No.

in bank. Appeal from superior court, city and county of San Francisco.

George Caawalader and G. B. R. Hayes, for appellant.
McAllister & Bergin, for respondent.

MYRICK, J. An opinion was filed by the court, in department, June 23, 1885. 7 Pac. Rep. 437. After hearing by the court in bank, we are satisfied of the correctness of the views expressed in that opinion. As to other points presented, but not referred to in the opinion, we will say we see no error. The court was correct in the views that the act of March 26, 1866, authorized an assessment on full-paid stock. The contract between Morris, the assignor of the plaintiff, and the Citizens' Gas-light & Heat Company did not call for unas

sessable stock, even if it should be conceded that under the laws of this state a corporation is authorized to issue stock upon which no assessment can be levied.

The judgment and order are affirmed.

We concur: SHARPSTEIN, J.; MORRISON, C. J.; Ross, J.; McKINSTRY, J.; MCKEE, J.

(69 Cal. 217)

CROSS, Adm'r, v. KITTS. (No. 9,544.)

Filed March 30, 1886.

1. GRANT GRANT OF PERCOLATING WATERS.

Percolating waters, collected or gathered in a stream running in a defined channel, are such property or incidents thereof as may be acquired by grant, express or implied, or by appropriation, and when rights in them are thus acquired, the owner cannot be divested of his rights by the wrongful acts of

another.

2 SAME-GRANT OF LAND-EASEMENT PASSES BY.

An easement of receiving waters passes by a grant of land to which the easement is incident.

In bank. Appeal from superior court, county of Nevada.
H. V. Reardon, for appellant.

C. W. Kitts, for respondent.

MCKEE, J. This is an appeal from a judgment in favor of the defendant in an action brought by the plaintiff to quiet title to a water-right described in the complaint, and to enjoin the defendant from asserting any title to the water adverse to the plaintiff. The judgment was entered upon a decision given in writing and filed under sections 632 and 633, Code Civil Proc. On this appeal from the judgment the plaintiff in the action contends that he was entitled to judgment upon the decision, and that is the question. According to the decision, J. C. Gillespie was formerly the owner and in possession of a gravel claim known as the "Gillespie Claim," which adjoined a gravel claim known as the "Shanghai Claim," situated at the head of Gold Flat, in Nevada county. The Gillespie claim was excavated by a tunnel 200 feet long, known as the "McCormick Tunnel;" the ground at the entrance of which had caved, so that "no water, perceptible upon the surface, issued out of it;" and Gillespie, at or near to its entrance, made an open cut, from the front, bottom, and sides of which water percolated and collected "in such quantity as to form a running and defined stream of about two inches, miners' measure.' This water came from near the inner end of the tunnel on or near the dividing line between the Gillespie and the Shanghai claims, and "where the bed rock pitched down into a low channel or basin." That was the condition of the Gillespie claim in the year 1864, when Gillespie, being in possession as owner, sold, and by deed transferred, to one A. D. Rich the right to the

water issuing from the tunnel in the claim, by the following description:

"That certain spring of water now issuing from the head of an open cut run by said Gillespie in the diggings of said Gillespie,-said diggings being at the head of Gold Flat, in Nevada township, Nevada county, state of California, and adjoining the Shanghai diggings on the west, and all waters now issuing or to issue from said spring, with the right and privilege to run another and deeper cut, or a tunnel, or cut and tunnel, to said spring, over and through the said diggings of Gillespie, and a right of way and easement to construct said cut or tunnel, and divert, manage, and control said waters, and make repairs, lay pipes and boxes, and convey and direct said water. The point from which said cut or tunnel is to be run to be the point on said Gillespie's diggings where the north-west corner of the said Shanghai diggings touches the diggings of said Gillespie."

When A. D. Rich acquired the water-right described in his deed, he and J. C. Rich were tenants in common of the Shanghai claim, adjoining the Gillespie claim, and of a parcel of property near to the two claims known as the "Half-mile House." There were two springs of water upon the Shanghai claim, and the proprietors of the Halfmile House brought the water from those springs, and from the spring issuing from the head of the open cut at the entrance of the tunnel in the Gillespie claim, by means of ditches, boxes, and pipes, down to their property for domestic use and irrigation; and in that manner they continued to use and enjoy the water from those sources until the year 1872, when they sold and conveyed the Half-mile House property to one G. M. Smith. The finding of the court is: "That said Half-mile House was by J. C. and D. A. Rich sold to G. W. Smith in 1872, and in the deed conveying the same several waterrights were described, and among them the following: Also that certain other water-right, situate in said township and county, consisting of a spring, and the waters arising therefrom, situate and being upon the Shanghai mining claim, formerly owned by Prior and Madison, on Gold Flat, in the ranch of Gillespie, together with all flumes and ditches used to divert and convey the waters of said spring to the lot and premises herein first conveyed.' And all the waterrights mentioned in the respective deeds from Rich & Rich to Smith * were likewise used at and appurtenant to said Half-mile House property at the time of the conveyance thereof to Smith."

*

As administrator of the estate of T. W. Sigourney, deceased, the plaintiff in the action derives title to the Half-mile House property, by mesne conveyances from Smith and A. D. and J. C. Rich. Sigourney died in 1880 seized and possessed of the property. From the year 1873, the date of his acquisition of title, until the time of his death, he occupied the property, and used and enjoyed the water appurtenant to it, to the same extent that his grantors, immediate and remote, had used and enjoyed it, except that some changes were made in the use, necessitated by the working of the gravel claims in which the springs were located; but the right of Sigourney to the water from

the McCormick tunnel in the Gillespie gravel claim was never questioned in his life-time. In fact, it was always admitted by the owners and workers of the claim. But in the year 1881, Kitts, defendants in the action, acquired the title of the Gillespie gravel claim, and, in working the claim by the hydraulic process, they mined away a portion of the McCormick tunnel, and stopped the waters from flowing into and through the Sigourney flume to the Half-mile House property, claiming that the water in the tunnel was their property.

The court decided in favor of defendants, holding, as matter of law, "that neither the plaintiff nor the plaintiff's intestate ever had or now has any estate, right, title, or interest whatever in the said mining claim, and the said plaintiff does not now have, and did not have at the time of the commencement of this action, any right, title, or interest whatever in any water or water-right therein or thereon, or the right to take water flowing therefrom; and that said defendants are the sole owners of all waters flowing from said mining claim and are entitled to the use and possession thereof; that they have the right to mine and work their said claims, and to divert, appropriate, and use all water that may be found therein that may flow therefrom."

The conclusion that the plaintiff had no right in or to receive the water flowing from the McCormick tunnel is not well drawn from the findings. The right in, and the right of receiving, the water (section 801, Civil Code) passed by the deed of Gillespie in 1864 to A. D. Rich, and all the actual title to the Half-mile House property passed from A. D. and J. C. Rich and their grantees by the mesne conveyances under which Sigourney derived the title. The right to the water from the McCormick tunnel, therefore, passed as an incident to the Half-mile House property. Section 1084, Civil Code; Sparks v. Hess, 15 Cal. 186; Cave v. Crafts, 53 Cal. 135. A transfer of real property, says the Code, passes all easements attached thereto, and creates, in favor thereof, an easement to use other real property of the person whose estate is transferred, in the same manner and to the same extent as such property was obviously and permanently used by the person whose estate is transferred, for the benefit thereof, at the time when the transfer was agreed upon or completed. Section 1104, Civil Code. But the decision that the defendants, as owners of the Gillespie gravel claim, had the superior right to the water, seems to have for its basis the fact found by the court "that all the water that ever flowed through the McCormick tunnel was percolating water gathered from the ground through which said tunnel was run; but the court also found as a fact that the water "percolated and collected in such quantity as to form a running and defined stream of about two inches, miners' measure."

There is no doubt that percolating water existing in the earth is not governed by the same laws that pertain to running streams. Water percolating in the soil belongs to the owner of the freehold

"Each owner," says the supreme court of Connecticut, "has an equal and complete right to the use of his land, and to the water which is in it. Water combined with the earth, or passing through it, by percolation or filtration, or chemical attraction, has no distinctive character of ownership from the earth itself, any more than the metallic oxides of which the earth is composed. Water, whether moving or motionless in the earth, is not, in the eye of the law, distinct from the earth." Roath v. Driscoll, 20 Conn. 540. See, also, Hanson v. McCue, 42 Cal. 303; Ballard v. Tomlinson, 24 Amer. Law Reg. 636. But where percolating waters collect or are gathered in a stream running in a defined channel, no distinction exists between waters so running under the surface or upon the surface of land. They are such property, or incidents to property, as may be acquired by grant, express or implied, or by appropriation, and when rights in them are thus acquired, the owner cannot be divested of his rights by the wrongful acts of another. In Brown v. Ashley, 16 Nev. 317, it was held that rights in water coming from a spring by percolation are acquirable by prior appropriation, and the appropriator cannot be divested of them by a subsequent owner of the soil, and a fortiori will that be the case where such rights are derived from the owner of the soil by express grant.

The plaintiff was entitled to judgment upon the findings. Judgment and order reversed, and cause remanded.

INSOLVENCY-HOMESTEAD-RESIDENCE.

In order that an insolvent may have property set apart to him as his homestead, it is not necessary that it should have constituted his residence at any time. California insolvent act of 1880.1

Department 1. Appeal from superior court, county of Alameda. William Thomas and Henry P. Bowie, for appellant.

E. W. McGraw, for respondent.

Ross, J. Bowman was adjudged an insolvent under the insolvent act of 1880. No homestead had been selected by him under the homestead laws of the state prior to the adjudication. A lot of land upon which he never resided was set apart to him as a homestead by the insolvency court by virtue of the provisions of section 60 of the act of 1880, which declares:

"It shall be the duty of the court having jurisdiction of the proceedings to exempt and set apart for the use and benefit of said insolvent such real and

1See note at end of case.