the head of the Rose ditch, and which seems to be admitted was the point of smallest capacity, to be four and forty-eight one hundredths cubic feet per second; being the quantity capable of being carried by a flume twenty by eighteen and three fourths inches, on a grade of one eighth of an inch to the rod. We have not been able to find testimony in the record sufficient to sustain this conclusion. The only persons who appear to have testified respecting the dimensions and grade of this flume were Rose, Hunt, Rosenbecker and Chapin. As to the size of the flume in question, the finding that it was twenty by eighteen and three fourths inches is, perhaps, sustained by the testimony; but there appears to be no evidence directly sustaining the finding that its grade was only one eighth of an inch to the rod. Rose himself swears that the ditch had a grade of three feet to the mile, but that the flumes were on a grade of a half inch to twelve feet. To destroy the force of this evidence, it is claimed by counsel for respondent that the witness admitted in another portion of his testimony that at one point he built a piece of flume twenty-four feet in length on the same grade as the ditch, which would make it less than one eighth of an inch to the rod, as found by the court. The testimony relied on is thus given in the transcript: After stating that this flume was put there to carry the water of the ditch under Dana creek-to the question, "what was the grade of that short flume?" he replied; "I told you I had graded it myself. When the water came through, I put this in the bank, two lengths of it in that place. When the water came there I commenced the two joints of flume. Q. You could not connect it with the grade of the ditch, and let the water under it? A. Not at that point. Q. The surveyor made the grade when he surveyed the ditch? A. Yes; this was put in there in case the water should come down the ravine. Q. Did the surveyor, when he made that survey, indicate that as a piece of flume? A. I do not think he did. Q. The regular survey was made as though that was a ditch part, and you put in a piece of flume? A. Yes; the Chinamen had dug around the point before. Q. The grade of that must have been changed? A. When I came to dig it there, I went and cut a little across, and managed it so that I got the water high enough, so that I could start it into the ditch." This is the testimony relied on by counsel as an admission that this

twenty-four foot flume was on a grade of only three feet to the mile. We can draw no such conclusion from it. The whole is rather indefinite; but if anything can be drawn from it, it is that the flume was not on the grade surveyed for the ditch, for the witness speaks of changing that grade. However that may be, even if it were admitted that it was on a grade of only three feet to the mile, it proves nothing in favor of the respondent; for the reason that the only evidence touching the dimensions of this piece of flume shows it to have been twenty-two by twenty-three inches, which is much larger than the flume above upon which the finding of the court is based. We do not think it is possible to interpret the testimony quoted, as showing with any degree of satisfaction what the grade of this short flume was. Furthermore, it appears to have been conceded by the parties in the court below that the capacity of the long flume, near the head of the ditch, was to determine the quantity of water appropriated, and upon its capacity the court below based its findings. Hence, it is but fair that the investigation in this court should be confined to the same section of the flume. The only distinct and satisfactory testimony by Rose, then, as to the grade of the flumes, shows them to have been one half an inch to twelve feet.

Hunt testified that his survey showed the general grade of the old Rose ditch to be about two and seven tenths feet to the mile. The general grade of the ditch may very well have been as stated by Hunt, and still the grade of the various flumes have been more than that. It is not claimed that he testified to the grade of the flume in question, or any flume specially; and it is perfectly manifest the grade of the flumes was greater than that of the ditch. So Hunt's testimony need not, and does not, necessarily conflict with the other evidence showing the flumes to have been upon a grade of one half inch to the twelve feet, or more. Chapin's testimony goes only to the dimensions of the long flume, a fact which we accept as found by the court below. The witness, Rosenbecker, swears positively that the grade of the flumes in the Rose ditch was three eighths of an inch to the rod; and he also swears that there was no flume in the ditch of less grade. The witness testifies that he measured the flume in question,

and took its grade. Hence, his testimony was based upon no conjecture or speculation, but upon actual measurement. This evidence together with that of Rose, is not, as we interpret it, directly contradicted by any witness or any calculation presented in the record. And as their testimony makes the capacity of the Rose ditch much larger than the court found it to be, we are compelled to set aside that finding and award a new trial.

Our conclusion upon this point renders it unnecessary to make any inquiry as to the relative capacity of the respondent's ditch of 1862, and that now used by it.

New trial ordered.

WHITMAN, J., did not participate in the foregoing decision.

REYNOLDS ET AL. V. HOSMER.

(45 California, 616. Supreme Court, 1873.)

Averments in complaint in suit for damages for sale of canal. In an action for damages for the sale of plaintiffs' interest in a canal and flume under a judgment which was afterward reversed by the Supreme Court of the United States, the complaint did not contain any direct averment that the canal and flume were ever constructed. Held, that this fact sufficiently appeared by necessary inference, and that it is not ordinarily necessary to aver the existence of the subject-matter about which litigation arises.

Amendments to complaint by permission not disregarded. Amendments to a complaint filed by leave of court before the arguments are concluded, will not be disregarded by the Supreme Court if there is nothing in the record to show that counsel for defendant were not present and consenting. Nor does it furnish ground for wholly disregarding the amendments, that the minutes of the clerk show that leave was obtained to file an amended complaint instead of amendments to the complaint.

Reversal of judgment operates ipso facto upon lower court. When

the Supreme Court reverses the judgment of the lower court, and its mandate, to that effect is filed in the lower court, the judgment is reversed, whether the lower court makes an order conforming its judgment to that of the higher court or not.

'S. C. 4 M. R. 6.

Remedy for sale under judgment afterward reversed. If a sale be made under an erroneous judgment which is afterward reversed, and the plaintiff in the judgment be himself the purchaser, the doctrine now is that the former owner, after reversal, may, at his election, either have the sale set aside and be restored to the possession, or have his action for damages.

Estoppel. The fact that such former owner has moved in the lower court to have the sale set aside, and his motion has been denied, will not estop him from afterward affirming the sale and maintaining his action for damages.

Assignee of erroneous judgment liable for sale made under it. An action for damages for a sale under an erroneous judgment afterward reversed, is properly brought against the assignee of the judgment, who had control of the execution and purchased at the sale, and the original judgment creditor is not a necessary party. Demurrer to complaint for uncertainty. A complaint, defective because

it fails to show in whom is the title to the subject-matter in controversy, can not be reached by general demurrer; it should be attacked by special demurrer.

1Tenancy in common presumed-Parties. The averment that the plaintiffs owned seven tenths of the canal, raises the legal presumption that they owned it as tenants in common, and in California tenants in common may suę jointly, or if one be dead his administrator may join with the other tenants.

Appeal from the District Court of the Twelfth Judicial District, City and County of San Francisco.

A corporation called the "South Fork Canal Company" constructed a ditch and flume for the purpose of carrying the waters of the south fork of the American river from a high point among the spurs of the Sierra Nevada mountains to the summit of the hills and high mining grounds surrounding the town of Placerville, El Dorado county. On the 12th day of June, 1854, George Gordon commenced a suit in equity in the District Court of the United States for the Northern District of California, against said corporation, to enforce a lien on the ditch and flume for work and labor performed on the ditch and flume and materials furnished therefor, and in the suit W. W. Reynolds and the plaintiffs here, Kirk and Isaac Reynolds, were co-defendants. About the 11th day of November, 1858, W. W. Reynolds died, and the plaintiff, James M. Reynolds, has been the administrator of his estate since the 16th day of

1Nippel v. Hammond, 4 Colo. 211.

March, 1859. Such proceedings were had in the suit that a decree was rendered in the Circuit Court of the United States for the Northern District of California on the 8th day of September, 1865, adjudging that there was due from the corporation to Gordon one hundred and fifty-one thousand and sixtyfour dollars and twenty-one cents, and that the same was a lien on the whole ditch and flume, and that it be sold and the proceeds be applied to the satisfaction of the lien. A master in chancery was appointed by the decree to make the sale, and on the 8th day of November, 1865, the master sold the whole ditch and flume to Hosmer, the defendant here, for the sum of seventy-five thousand dollars. Hosmer, before the decree was made, had received an assignment from Gordon of all Gordon's right, title, and interest in the demand in suit. The sale of the master was confirmed, and on the 16th day of July, 1866, he gave Hosmer a deed conveying to him all the right, title, and interest of the defendants in the action. The amount of Hosmer's bid was credited on the amount found due by the decree, and Hosmer entered into immediate possession of the property. Before the sale, and on the 13th day of November, 1865, a writ of error was prosecuted from the decree to the Supreme Court of the United States. At the December term, 1867, the Supreme Court of the United States reversed the judgment and decree, and adjudged that the plaintiff had no lien on that part of the ditch and flume extending from the Grand Reservoir, near Placerville, to Long cañon, a distance of sixteen and one quarter miles, and issued a mandate to the circuit court with directions to enter a decree in conformity with the opinion of the Supreme Court.1 On the 17th day of August, 1868, the mandate and opinion of the Supreme Court was filed in the circuit court, and on the same day the defendants and their successors in interest filed a petition in the circuit court to set aside the sale made by the master, and to modify the decree so as to make it conform to the opinion of the Supreme Court. On the 30th day of September following the circuit court denied the motion. At the time of the rendition of the decree of the circuit court, and at the time of the master's sale, and the confirmation thereof, James M. Reynolds, as administrator of the estate of 1 Canal Co. v. Gordon, 6 Wall. 561.

1