the street less than the entire width of the roadway, including the curbing and one block in length, or one entire crossing." To hold that the word "street" in the body of the section means "roadway" would make the proviso meaningless. When it is said that the board, upon certain conditions, may accept a street, but shall not accept any portion of it less than the entire width of the roadway, it is very plain that the street it is authorized to accept may be wider than the roadway; in other words, that it may include the sidewalks. And we see nothing in the ordinance in question manifesting the intention to limit the acceptance of the street in question to the width of the roadway.

Judgment and order affirmed.

SHARPSTEIN, J., MORRISON, C. J., and Ross, J., concurred.

No. 7,453

SANTA CRUZ RAILROAD COMPANY v. SPRECKLES.

In Bank. Filed May 12, 1884.

ASSESSMENT ON FULLY PAID UP STOCK-DISSENTING OPINION OF THORNTON, J.

Appeal from a judgment of the superior court for Santa Cruz county, entered in favor of the defendant. The facts are stated in the opinion of the majority of the court, reported in 2 West Coast Rep. 752.

C. B. Younger, for the appellant.

Jarboe & Hurrison and Craig, for the respondent.

THORNTON, J. I dissent: I adhere to the opinion filed in this case on the thirtieth of June, 1882, and I desire to add to it what follows: The limitation in the first subdivision of section 332, C. C., is not changed by the provisions of section 333 so as to allow a recovery here. The purpose of this latter section is to authorize an assessment when any portion of a previous assessment remained unpaid.

Now that is not the case here. It does not appear that there was any portion of any previous assessment remaining unpaid. The casus legis not appearing, it is the same, as far as regards the case under consideration, as if it did not exist.

Conceding, then, that an assessment may be levied in cases of the subscribed capital stock to pay a portion of a previous assessment remaining unpaid, no such state of things appearing herein, the assessment sued on as to this defendant, who has paid for his stock in full, is invalid.

There is no reason to hold that the provisions of section 333, which constitute a limitation on section 332, enlarge in any way the provisions of the last-named section any further than conceded above. I have examined with much care the case of Sullivan v. Triunfo M. Co., reported in 39 Cal. 459. The question herein considered was not made in that case. Certainly it was not raised or

discussed by counsel. No such objection as is here made to the validity of the assessment was made in that case. Nor do I think it was passed on by the court. The act of 1864, under which the assessment under consideration in the case cited was levied, has no provisions similar to those in section 332. The difference between the two systems, viz., that created by the act of 1864, and that created by the civil code, is plainly apparent. The court in the Sullivan case held, substantially, that the act of 1864 repealed the act of 1853, and did away with all the limitations and restrictions in the act of 1853. It left the power to levy assessments without limit, except the restriction on the power to levy one assessment when any portion of a previous assessment remained unpaid.

The decision amounts to this only, that the power of assessment was not limited by the amount of the capital stock by the act of 1864. This may be admitted to be correct under the provisions of the act of 1864, because this act contains no such restrictions as are set forth in section 332, C. C., or the tenth section of the act of 1853, this last section having been repealed by the act of 1861.

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*

To explain my meaning more fully: In the case cited the court remarked as follows: "We express no opinion as to whether the provisions of the act are applicable to calls or assessments for subscriptions to the capital stock. The question does not arise in this case, for we infer from the complaint that the stock was issued in the usual mode of mining corporations: that is, the stock was issued to the owners of the mine in proportion to their several interests therein." The point as to which the court expresses no opinion is this, whether the provisions of the act of 1864, in regard to assessments, include assessments for the subscribed capital stock. That act authorizes the "trustees of any corporation' * "to levy and collect assessments upon the capital stock thereof, for the purpose of paying the proper and legal expenses of such corporation. The question might arise whether the words "proper and legal expenses of such corporation" included the subscription to the capital stock. This is the question which I understand the court in the case referred to decline to express any opinion on. The remark following the statement that the question did not arise in the case, may be interpreted to mean that the capital stock in that case was fully paid up for the reason given. Concede this to be the meaning, and it only amounts to this, that if the capital stock was fully paid, yet the act authorizes assessments for the purpose of paying the proper and legal expenses of the corporation; the power to levy and collect assessments having under this act no such limit as the full payment for the subscribed capital stock. This limit, in my opinion, is found in section 332, and is not in the act of 1864. I express no opinion as to the question discussed in this opinion, in regard to mining corporations. It is unnecessary to do so, and I therefore forbear to say anything in relation to such corporations.

I am still of opinion that the judgment of the court below is without error and should be affirmed.

MCKEE, J., and MYRICK, J., concurred.

RIPARIAN PROPRIETORS AND RIPARIAN RIGHTS ON PRIVATE STREAMS.

The defendants also requested the trial court to instruct the jury as follows: "The plaintiffs are not in any event entitled to recover damages for the diverting from Mormon channel any waters which were not the natural waters of the Calaveras river, nor for the diverting of any waters in excess of plaintiffs' just and fair proportion of the natural waters of the Calaveras river and Mormon slough. If the jury believe from the evidence that the defendants caused to be turned in and run down the Calaveras river, above Mormon slough, prior to the erection of plaintiffs' dam, and until the first of June, 1877, waters taken from the Mokelumne river; and if the jury further believe from the evidence that the natural waters of the Calaveras river did not run down the river to the head of Mormon slough in sufficient quantity to irrigate plaintiffs' land in the spring of 1877, and after plaintiffs had constructed their dams, then the jury should find for the defendant." The court refused to give these instructions, and the defendants excepted. In regard to these exceptions the supreme court said: "The court did in effect charge all these propositions in giving the following requests asked by defendants: 'Third. In no event were the plaintiffs entitled to the use as riparian proprietors of any water except the water which would naturally flow down the Calaveras river and the Mormon slough, and if the jury believe from the evidence that any water was turned into the Calaveras river above the head of the Mormon slough, at the request of the defendants or any of them, from ditches which drew their water from Mokelumne river, then the plaintiffs cannot recover any damages for being deprived of the use of the water which was so turned into the Calaveras river. Fourth. The plaintiffs had not the legal right to use for the purpose of irrigation all of the natural waters of the Calaveras river which flowed down the Calaveras river and Mormon slough. The other riparian proprietors of land on the Mormon slough had a legal right to use such natural waters equally with plaintiffs. The plaintiffs had no legal

exclusive right to use such natural waters for the purpose of irrigation in excess of their just and fair proportion thereof. Ninth. If the jury believe from the evidence that the defendants, or any of them, caused to be turned into the Calaveras river, above the head of Mormon slough, waters taken from the Mokelumne river, and such waters continued to flow down the Calaveras river from the middle of April until the first of June, 1877, then the plaintiffs cannot recover because the defendants prevented them from using such waters.'"

With respect to other exceptions and objections by the defendants, the supreme court further said: "An exception was reserved to the following instruction asked by the plaintiffs: Every riparian owner upon a stream has a right to use, in a reasonable way, the water of said stream for domestic purposes, for the irrigation of his land, or for propelling machinery, if the quantity of water will warrant such use above the amount required for domestic purposes.' As to this, the counsel for defendants said: "The plaintiffs were entitled to the reasonable use of the natural waters of the Mormon slough. By reasonable use is meant reasonable quantity as well as reasonableness in the manner of its use. The vice of the instruction is that the right to use the water is qualified by the reasonable manner of its use, and not by an unreasonableness in respect to the quantity used.' In our judgment, the criticism of the learned counsel is not warranted. It savors of hypercriticism. The instruction as given embraced quantity as well as manner. We do not see that any injury was done to the defendants in giving the instruction eight, asked by the plaintiffs. It was in these words: In the state of California the right to the use of water becomes fixed after five years' adverse enjoyment of the same.' There was some evidence, in our view, on which such a charge might be predicated. Further, in our opinion, the plaintiffs were entitled to recover if there was a diversion, which seems to have been clearly shown. In fact, the diversion was not denied in the answer, so that the charge objected to was immaterial and did no injury."

We have thus quoted in full every instruction of the trial court, and every portion of the opinion of the supreme court in this case, which directly or indirectly relates to the riparian rights of riparian owners, or to unlawful diversion of water, or to the general question concerning the right to use the water for purposes of irrigation. All the other instructions as reported, and all the remaining portions of the opinion, deal exclusively with the measure of damages in this particular case, how far the plaintiffs were entitled to recover for the value of the crops which they would have raised if their land had been irrigated, and by what evidence that value could be established. In this discussion no allusion whatever is made to riparian rights in general, nor to the gene

ral right of a riparian proprietor to use the water of the stream for the purpose of irrigating his land.

It is very plain, from the foregoing description and quotations, that the general questions concerning the extent of private riparian rights, and especially concerning the right to use the waters of the stream for irrigation, are not determined by this case, except so far as a doctrine may be regarded as settled, when it is tacitly accepted by both the litigant parties at a trial, and its correctness, therefore, is not questioned before or by the appellate court. The instructions of the trial court, purporting to embody the general rules as to the use of water for irrigation by a private riparian proprietor, were not excepted to by the defendants, and the rules thus laid down were, therefore, assumed to be correct for this case by the supreme court on appeal; but such assumption does not necessarily establish these rules as correct for all cases,-does not settle them as general rules of the law defining and fixing the rights which belong to private riparian proprietorship. There are other features of this case, as reported, which prevent it from being a final settlement of the important general questions under discussion. In the first place, it does not clearly appear in what relations the two litigant parties, plaintiffs and defendants, were regarded by the court as standing towards each other;-whether they were both regarded as two riparian proprietors upon the same stream, and, therefore, as having equal rights to the use of its waters; or whether the plaintiffs were regarded as riparian proprietors upon one stream,-viz., the Mormon slough,-and the defendants, as appropriating and diverting the water of that stream for the benefit of their land, which was not situated upon its banks. The Calaveras river and the Mormon slough might be regarded as one stream, although divided into two branches, in which case the plaintiffs might be in the position of upper, and the defendants of lower, proprietors on the single stream. The instructions of the trial court seem to have taken this view. On the other hand, the Mormon slough might be regarded as a single stream, and the plaintiffs, as riparian proprietors, upon it, while the defendants were wrongfully diverting and appropriating its waters, because they were not proprietors of land upon its banks. The language of the opinion of the supreme court, already quoted,"Further, in our opinion, the plaintiffs were entitled to recover if there was a diversion,"-tend somewhat to sustain this view, as the one taken by that court.

In the second place, the two instructions of the trial court, which purported to embody the general rules concerning the use of water for irrigation, and which were not substantially objected to by the defendants, will be found, on careful examination, not to be entirely harmonious; in fact, they are susceptible of such a construction as will make