The objection that the complaint is am answered. By his answer he denied, among | of Charlotte, in the state of Virginia; also other things, that Bouldin, at the time of that it did not allege that said court has his death, or at any time during his life, jurisdiction to approve and admit said will owned or possessed the land in contro- to probate." We see nothing in this point. versy, or any part thereof, in fee-simple ab- The complaint seems to us to state the facts solute, but admitted that he held an equi- referred to as fully as was necessary for the table title to the same. It was then, for purposes of the case. further answer, and by way of cross-complaint, alleged that defendant was the own-biguous and uncertain because the land is er, seised in fee, in the possession, and entitled to the possession, of all the lands described in the complaint, and that the plaintiffs had not, nor had any of them, any estate, right, title, or interest therein; and the prayer was that defendant's title to the lands be quieted as against the plaintiffs. On motion of plaintiffs the cross-complaint was stricken out. The case was then tried, and judgment given for plaintiffs, from which, and from an order denying him a new trial, defendant appealed. not sufficiently described is also untenable. The complaint, as finally amended, describes the land as that part of the Mission rancho of San Diego, known as Lot 23, containing 516 acres. The rancho had been partitioned, and lot 23, as described on a map accompanying the report of the commissioners making the partition, was awarded to the estate of Bouldin. The description was, therefore, sufficient for identification of the property. 2. There was no error in striking out the defendant's cross-complaint. In an action to quiet title, where defendant relies upon title in himself, a cross-complaint is unnec essary. Wilson v. Madison, 55 Cal. 5; Association v. Wagner, 61 Cal. 349. Besides, as judgment was given for plaintiffs, the error, if any, was harmless. 3. At the conclusion of plaintiff's testimony the defendant moved for a nonsuit on the ground "that the plaintiffs had failed to prove a sufficient case." The motion was denied, and it is claimed that the ruling was erroneous. "It is settled law in this state that à party moving for a nonsuit should state in his motion precisely the grounds on which he relied, so that the attention of the court and the opposite counsel may be particularly directed to the supposed defects in the plaintiff's case." Coffey v. Greenfield, 62 Cal. 608. The motion made here did not comply with this rule, and it was therefore properly denied. 4. It is urged that the court erred in de 1. It is claimed for appellant that the court erred in not sustaining his demurrer, but we think the ruling proper. The averment relating to the appointment of Miller as special administrator is as follows: "That by an order of the superior court in and for the city and county of San Francisco, state of California, (department 9,) John H. Miller, one of the plaintiffs herein, was duly appointed and constituted special administrator of the estate of Thomas T. Bouldin, deceased, on the 15th day of June, 1887, and by such order he was especially authorized and empowered to institute and .defend all proceedings, actions at law, and suits in equity as shall be necessary and proper to recover possession of any of said estate claimed or held adversely by others; that on the 15th day of June, 1887, he took the oath and filed the bond required by law as special administrator of said estate, and his said letters to him issued as aforesaid are in full force and effect, and have not been revoked." It certainly does not ap-nying defendant's motion for new trial. pear from this averment, or on the face of The motion was based upon the alleged inthe complaint, that Miller had not the legal sufficiency of the evidence to justify the decapacity to sue. The most that can be said cision upon newly-discovered evidence and is that it does not sufficiently appear that upon errors in law occurring at the trial. he had such capacity. But "it is not a good We think the evidence sufficient to justify ground for demurrer that it does not ap-the decision. It was proved by plaintiffs pear in the complaint that the plaintiff has that on the 9th day of September, 1871, the the legal capacity to sue. That omission defendant, Luco, executed to Bouldin a quitcan only be taken advantage of by answer." claim deed, by which he conveyed to the District No. 110 v. Feck, 60 Cal. 405. party of the second part "all the right. title, and interest of the party of the first part in and to the undivided interest of five hundred (500) acres of that certain tract of land situate in the county of San Diego, state of California, and known as 'the lands of the ex-Mission of San Diego,'granted by the Mexican government to Santiago Arguello, and finally confirmed by the courts of It is alleged in the complaint that Boul- the United States to the grantee; the said din died in the city of San Francisco in the undivided interest hereby conveyed being a month of April, 1873, and "that he left a portion of the interest in said ex-Mission will, which was duly admitted to probate lands derived by said party of the first part in the county of Charlotte, in the state of from Isaac Hartman, by deed dated the 23d Virginia, by the county court of said coun- day of March, A. D. 1869, and by said Hartty, (the same having jurisdiction to probate man derived from Augustin Olvera by an said will,) in the month of May, 1873." The instrument in writing dated the 5th of Febobjection is that the complaint is insuffi-ruary, A. D. 1869, and theretofore conveyed cient "because it does not allege a due exe- to said Olvera by the widow and heirs of cution of the said will of the said Thomas said Santiago Arguello, which said deed, T. Bouldin, deceased; also, because it does not allege that said will has been duly proved or admitted to probate in the county The objection that there was a misjoinder of parties plaintiff is met by section 1452 of the Code of Civil Procedure, which expressly provides that "the heirs or devisees may themselves, or jointly with the executor or administrator, maintain an action for the possession of the real estate, or for the purpose of quieting title to the same," etc. instrument, and conveyance are of record in the county recorder's office of San Diego county." And it was proved by defendant that an action was commenced in his name, | case of a transfer of interest the action or as plaintiff, for the partition of the Mission proceeding may be continued in the name rancho, and that on the 19th day of April, of the original party, or the person to whom 1886, final judgment was rendered in the ac- the transfer is made may be substituted. tion, by which there was awarded and set Code Civil Proc. § 385; Hestres v. Brennan. apart to the estate of Bouldin, in severalty, 37 Cal. 385; Camarillo v. Fenlon, 49 Cal. 202. a portion of the rancho, described by metes There are several alleged errors in law and bounds, containing 516 acres, and des- for which it is claimed a new trial should ignated as lot 23. It was also proved by have been granted, but none of them are plaintiffs that Bouldin died in April, 1873, discussed by counsel for appellant. In his leaving a will, which was executed in March, points and authorities he has simply copied 1849, and by which he provided that "the the specifications of error found in the dividends and interests" arising from his statement of the case, without any atestate should be collected by his executors tempt to show how or why the rulings and paid to his father annually during his complained of were erroneous. Only two natural life, and that after his father's death of these specifications need be noticed. Dethe whole of his estate should be equally fendant offered in evidence a sheriff's deed, divided between his two sisters, Joanna T. dated February 21, 1887, purporting to conSpencer and Alice S. Bouldin; that the vey to him the land in controversy. The father died in 1854, and the sister Alice in deed recited that, whereas, by virtue of an 1885; that the plaintiffs other than Miller, execution issued out of the superior court of the special administrator, were the sister San Diego county, upon a jugment recovJoanna and her husband, and the children ered therein, on the 19th day of April, 1886, of the sister Alice, and the husband of one in favor of Juan M. Luco, plaintiff, and of them; and that the will was admitted against John W. Carter, administrator of to probate in the state of Virginia, and that the estate of Thomas T. Bouldin, deceased, Miller was appointed special administrator defendant, the sheriff was commanded to of the estate in California. This, we think, make certain moneys out of the personal constituted sufficient proof that the plain- property of the judgment debtor, and, if tiffs had an interest in the property in ques- sufficient personal property could not be tion, and that all of them except Miller and found, then out of the real property belongthe husbands were the legatees or heirs of ing to the judgment debtor at the date of the decedent. It was not necessary to the judgment; and whereas, sufficient perprove that the children of Alice had suc- sonal property could not be found, the sherceeded to her interest, nor that she did not iff did levy on, take, and seize all the right, in her life-time devise her interest to stran- title, interest, and claim which the said gers. This, if true, was matter of defense. judgment debtor had to the lands, teneNor was it necessary to prove that the de- ments, and real estate thereafter described, fendant held the premises adversely to the and did, on the 19th day of August, 1886, plaintiffs, or that the plaintiffs were in pos- sell all the right, title, interest, and claim session thereof. of the said judgment debtor in and to said premises at public auction to the party of the second part (defendant Luco) for the sum of $84.67; and whereas, six months after the sale had elapsed, and no redemption had been made therefor, the sheriff, in consideration of the premises,granted, sold, and conveyed unto the party of the second part all the right, title, interest, and claim which the said judgment debtor had, on the 16th day of July, 1886, or at any time afterwards, in and to the land described. The newly-discovered evidence upon which defendant relied for a new trial was set forth in an affidavit made by his attorney as follows: (1) The property described in the complaint was assessed for the year 1886 to the administrator of the estate of Bouldin, and the state and county taxes levied thereon amounted to $8.60. These taxes were not paid, and on the 7th day of March, 1887, the property was sold therefor, and defendant became the purchaser. There was no redemption, and on the 26th day of March, 1888, (between the time of the trial of this action and the entry of judgment therein,) defendant obtained a tax collector's deed for the property. (2) While this action was pending, and before the trial thereof, the plaintiffs conveyed all the property described in the complaint to one William R. Wells, who thereafter conveyed the same to other parties. Neither the defendant nor his attorney had any knowledge of these conveyances until two days after the judge of the court below made and filed his findings and decision in the case. We do not think the tax-deed or the matters leading up to it constituted newly-discovered evidence. At most the deed, if valid, showed a title acquired pendente lite, and, under a well-settled rule, such a title cannot be availed of unless set up by supplemental answer. The conveyance by plaintiffs was not good ground for a new trial. If proof of it had been made at the trial, the result would not thereby have been changed. The Code provides that in The plaintiffs objected to the deed being received in evidence, and the court sustained the objection. We see no error in this ruling. The deed recites a judgment and execution against Carter, and a sale of his interest in the land. The defendant offered in evidence a deed made by the tax collector of San Diego county under date of February 25, 1887,. purporting to convey to defendant "the whole of the undivided 305 acres of land in the ex-Mission rancho," situate in the county of San Diego, in pursuance of a sale for $6.55, state and county taxes levied against the property for the year 1885. The plaintiffs objected to the deed being received in evidence on the ground that it appeared on the face thereof to have been altered in a material respect after its execution, and the court sustained the objection. We see no error in this ruling. It was fully justified by section 1982 of the Code of Civil Procedure. 5. Finally, it is claimed for appellant that the findings do not cover all of the is It results that we find in the record no error prejudicial to appellant, and therefore advise that the judgment and order be affirmed. We concur: HAYNE, C.; VANCLIEF, C. PER CURIAM. For the reasons given in the foregoing opinion the judgment and order are affirmed, sues raised by the pleadings, and that the to lands occupied and owned by him, where decision was therefore against law. There they were used for irrigation and other is no necessity for findings upon immate- purposes, thereby acquired a right to conrial issues, or as to facts which are alleged tinue such diversion and use, as against in the complaint and not denied by the an- Mrs. Curtis, a subsequent pre-emptioner of swer. Findings should be of the ultimate, the land upon which the spring rises, and; not the probative, facts; still a finding of this notwithstanding De Necochea's diverprobative facts is sufficient, if the court is sion and use of the water was not comenabled to say that the ultimate facts nec-pleted or even commenced prior to the enessarily result therefrom. Coveny v. Hale, actment of the Civil Code, and notwith49 Cal. 552; Coglan v. Beard, 65 Cal. 58, 2 standing he failed and neglected to post or Pac. Rep. 737. The findings under review record the notice prescribed by section 1415 here are almost wholly of probative facts, of the said Code. This conclusion counsel and are not to be commended. We think, for respondent vigorously combat in an arhowever, that the ultimate facts, so far as gument which we are sure leaves nothing they are material and in issue, result from further to be said on their side of the questhe facts found, and the findings should tion. If the time at our disposal permitted, therefore be held sufficient. it would not be unprofitable to take up the points of this argument and consider them seriatim, and perhaps it is only fair to counsel that we should do so, but, as it is, we can only repeat with a little more fullness what we have before said, noticing incidentally some of the more important of the objections to the grounds of our decision. There is no difference between counsei and the court as to the meaning and effect of the acts of congress cited in our former opinion. It is conceded on all sides that rights to the use of water on the public lands of the United States for mining, manufacturing, agricultural, and other purposes (and to the ditches and reservoirs used in connection with such water-rights) which have vested and accrued, and are recognized by local customs, laws, and decisions of the courts, are confirmed and assured to the owners; and that all purchasers of public lands affected by the diversion of streams from their natural courses for the purposes named take such lands subject, and subject only, to such vested and accrued water rights. When, therefore, a contest like this arises between a pre-emptioner of public land claiming riparian rights in a spring rising upon, or a stream flowing through, his land, as against one who asserts a right to divert the spring or stream to other lands for agricultural or other beneficial purposes, the sole question is whether a right so to divert and use the water had vested and accrued before the right to purchase the land became a vested right. In this case it is clear from the findings that the respondent's right to purchase did not become a vested right prior to the year 1885, and that as early as the year 1880 the appellant had completed the diversion, and was in full enjoyment of the use of the water of the spring for the irrigation of his land. DE NECOCHEA V. CURTIS. (No. 12,742.) (Supreme Court of California. Aug. 31, 1889.) * IRRIGATION-NOTICE. Civil Code Cal. § 1415, provides "that a person desiring to appropriate water must post a notice * at the point of intended diversion." Section 1419 provides "that a failure to comply with such rules deprives the claimant of the right to the use of the water as against a subsequent claimant who complies therewith." Heid, that a diversion of water without compliance with the statute gives a right to continue the diversion as against a subsequent pre-emptioner of the land through which the water flows who has also not complied with the statute. Affirming 20 Pac. Rep. 563. On rehearing. For former report, see 20 BEATTY, C. J. A sufficient statement of this case will be found in our former opin ion, filed February 23, 1889, and reported in 20 Pac. Rep. 563. After filing that opinion we concluded, on account of the novelty and importance of the question decided, to order a rehearing, and the case, after full and exhaustive reargument, has been again submitted for decision. In their printed brief filed upon the rehearing, counsel for appellant have urged several assignments of error in addition to that upon which we held that the judgment of the superior court must be reversed; but since, after the most attentive consideration of the very able and ingenious argument of counsel for respondent, we are still satisfied of the correctness of that decision, and of the validity of the reasons upon which it was based, we do not deem it necessary to consider any other questions affecting the right of appellant to a reversal of the judgment. We held in our former opinion that De Necochea, having, by means of an artificial ditch, completed the diversion of the waters of a spring rising on public lands of the United States from their natural channel But the respondent contends that he was nevertheless not an appropriator and had no vested right to the use of the water rec ognized or acknowledged by the laws of this state, because having commenced and completed his diversion of the waters of the spring after the enactment of the Civil Code he failed and neglected to post or record the notice prescribed by section 1415. As this is the point upon which our decision must turn we will endeavor to state our views with respect to it somewhat more fully and explicitly than we have hitherto done. Sections 1415 and 1416 of the Civil Code read as follows: "A copy of the notice must, within ten days after it is posted, be recorded in the office of the recorder of the county in which it is posted. 'Sec. 1415. A person desiring to appro- of a man who has gone upon the public unpriate water must post a notice in writing occupied lands of the United States, divert in a conspicuous place at the point of in-ed water from its natural course, conveyed tended diversion stating therein (1) that it through ditches and flumes to a distant he claims the water there flowing to the point, and used it for irrigation, mining, or extent of (giving the number) inches neas-manufacturing purposes. Is the pre-empured under a 4-inch pressure; (2) the pur- tioner, who sees him in actual possession poses for which he claims it, and the place of his dams and ditches, diverting the water of intended use; (3) the means by which he and using it, when he first sets foot upon intends to divert it, and the size of the the land, in any wise injured by the circumflume, ditch, pipe, or aqueduct in which he stance that such actual diversion was not intends to divert it. preceded by the posting and recording of a notice of intention, followed by work commenced within sixty days and diligently prosecuted? We cannot perceive that he is. If he wishes to locate and pur"Sec. 1416. Within sixty days after the chase the land he can see precisely what the notice is posted, the claimant must com- nature and extent of the servitude is to mence the excavation or construction of which it has been subjected, far more prethe works in which he intends to divert the cisely, at least, than he could have known water, and must prosecute the work dili- from a mere notice of intention such as the gently and uninterruptedly to completion, Code prescribes. But, irrespective of any unless temporarily interrupted by snow or considerations of convenience, the sole rain." question is, has the appropriator in the case It may be conceded that if these provis-supposed a right to the water which our ions of the law stood alone and unquali- laws recognize and enforce? If he has, he fied, strict, or at least substantial, compli- is within the terms and entitled to the benance with their requirements would be, as counsel claim, a sine qua non to the acquisition of any right to divert running water from its natural channel. But these provisions do not stand alone. Section 1418 reads as follows: "Sec. 1418. By a compliance with the above rules the claimant's right to the use of the water relates back to the time the notice was posted." efit of the congressional legislation above referred to. And there can be no doubt that since the Code, as before, he has a perfect right, deducible from common-law principles, to the water actually appropriated as against all the world except the owner of the soil and those claiming adversely who have complied with the law. In the absence of such adverse claim his right is perfect, for the owner of the soilthe United States-has recognized and confirmed it, and has declared that all subsequent purchasers must take subject to it. Counsel for respondent seem to understand the last sentence of our former opinion as holding or intimating that while she, as a riparian owner,can claim no advantage from the failure of appellant to post and record a notice of his intended appropriation, another appropriator could at any time, by compliance with the provisions of the Code, take the water which he has diverted and is using. We must not be un In this provision we begin to see the purpose and object of the legislature, which, in our opinion, was merely to define with precision the conditions upon which the appropriator of water could have the advantage of the familiar doctrine of relation upon which it had always been held before the statute that one who gave sufficient notice of his intention to appropriate, and followed up his notice by diligent prosecution of the work, was, upon its completion, to be deemed an appropriator from the date of his notice, and was, therefore, prior in time and stronger in right than an inter-derstood as holding or intimating any such vening appropriator, notwithstanding his diversion of the water might be first completed. We are not, however, left to any doubtful implication to be drawn from section 1418. Section 1419 reads as follows: "Sec. 1419. A failure to comply with such rules deprives the claimants of the right to the use of the water as against a subsequent claimant who complies therewith.' This language clearly and necessarily implies that there is a right to the use of running water acknowledged by the legislature and cognizable by the courts which is good against all the world, except a claimant who has complied with the rules prescribed in sections 1415 and 1416. Now what is this right, what can it be except the right of one who has fully completed the diversion of running water and applied it to a beneficial use before the initiation of an adverse right of appropriation under the law, or the acquisition of an adverse right in the land to be affected by the diversion? And why should not such a right be recognized and enforced? The case supposed is that opinion. The case presents no such question for decision, even incidentally, and we express no opinion about it. Since, therefore, we have not made this supposed peculiar and invidious discrimination against purchasers of public land, we need not stop to defend it. If there is any such discrimination, which we do not admit, it is made by the terms of the statute, and not by any construction put upon it by us. We concede the force, the conclusiveness even, of the argument that if the pre-emptionercannot, in view of section 1419 of the Civil Code, take advantage of the failure of an appropriator to post a notice, he cannot, for the same reason, take advantage of his failure to commence and prosecute the work of diversion with diligence, as provided in section 1416. But of what consequence is this? We decide nothing except that a diversion of water, without compliance with the statute, gives a right to continue the diversion against a pre-emptioner whose right of purchase vests after the diversion is fully completed, and then only to the extent and in the manner of such actual and be made only when the ground is open to exploration and relocation, allegations by plaintiff that while the ground was not open to appropriation it was relocated for the sole purpose of facilitating the procurement of a patent therefor are contradictory, and averments by the defendant that the ground was vacant public land, and that a notice of location was posted thereon, do not raise an issue as to ownership by relocation. Ap completed diversion. We do not hold that | valid location or relocation of a mining claim can an uncompleted diversion without compliance with the statute gives any right to complete or continue the diversion as against an intervening right of pre-emption. The question under discussion was not involved in the case of Lux v. Haggin, 69 Cal. 255, 10 Pac. Rep. 674, and, of course, was not there decided. There are expressions in the opinion which seem to imply that an appropriation can only be made by strictly pursuing the rules prescribed by the Code, but it is evident they were not used for the purpose of establishing the proposition, and nothing which was decided depends on such a proposition for its support. The same may be said of Osgood v. Mining Co., 56 Cal. 571. Commissioners' decision. In bank. peal from superior court, Sierra county; F. D. SOWARD, Judge. Action by Robert Hall, grantee of Charles Waterhouse, against James Arnott, Isabella Baird, and Henderson, to redeem from a mortgage in form of a deed absolute executed by said Waterhouse. Judgment for defendants, and plaintiff appeals. For these reasons and those assigned in Before the appeal was perfected he died, our former opinion, we think the judgment and Delia Hall, as administratrix, was subof the superior court should be reversed, stituted in his stead. Civil Code Cal. § 2924, and as both parties agree that a new trial provides: "Every transfer of an interest is not required, it is ordered that the judg-in property, other than in trust, made ment appealed from be reversed and the cause remanded, with directions to the superior court to enter a judgment for the plaintiff in accordance with the views herein expressed. We concur: PATERSON, J.; THORNTON, J.; MCFARLAND, J.; SHARPSTEIN, J. HALL V. ARNOTT et al. (No. 13,174.) (Supreme Court of California. Sept. 2, 1889.) MORTGAGES-ABSOLUTE DEED-FORECLOSURE REDEMPTION. only as a security for the performance of another act, is to be deemed a mortgage. Code Civil Proc. Cal. § 726, allows a personal judgment for the balance due a mortgagee when the proceeds of a sale of the mortgaged property are insufficient. Gray & Sexton and Smith & Ford, for appellant. P. Vanclief, for respondents. GIBSON, C. Action to redeem from a mortgage in form of a deed absolute. On the 7th day of August, 1882, one Charles Waterhouse became the owner of an undivided onetenth interest in the Pacific mining claim, situated in the Port Wine district, in Sierra county, and in conjunction with N. B. Abbott and S. M. Boyce on the same date executed and delivered to James Arnott and Thomas Baird, who were mining partners at the time, a deed absolute in form, conveying said one-tenth interest in the Pacific mining claim to secure the payment of 1. Where an indebtedness existing at the time of the execution of a deed, the purpose of the deed as a security therefor, and the continuance of the relation of debtor and creditor, are admitted, such deed operates as a mortgage, though it be in form absolute, under Civil Code Cal. § 2924, providing that "every transfer of an interest in property, other than in trust, made only as a security for the performance of another act, is to be deemed a mortgage; " and a defeasance executed subse-money due from Waterhouse to the granquently, and reciting that the legal title conveyed by the deed would be reconveyed upon payment of the indebtedness secured therein, does not change the effect of the deed. 2. Under Code Civil Proc. Cal. § 726, providing that there can be but one action for any debt secured by mortgage upon real estate, where two deeds are for the benefit of the same parties and to secure the same debt, though on different property, they must be included in the same action for foreclosure, and failure to include one of such deeds in such an action extinguishes the lien given by it. 3. Though the lien is thus extinguished, the deed remains a cloud upon the grantor's title to the property therein described, which he is entitled to have removed upon payment of any balance due on decree of foreclosure of the other deed. 4. Failure of the mortgagee to take a personal judgment for the balance does not affect the mortgagor's remedy, since judgment cannot be taken after exhausting the security by waiver, under Code Civil Proc. Cal. § 726, allowing such judgment in case proceeds of sale of mortgaged property are insufficient. 5. Under Civil Code Cal. § 2903, providing that "every person having an interest in property subject to lien has a right to redeem it from the lien at any time after the claim is due and before his right of redemption is foreclosed," the right to redeem is unaffected by the running of the statute of limitations against the principal debt. 6. The mortgagor, or those claiming under him, can require no more than a reconveyance of the in terest originally conveyed by the mortgage. 7. Under Rev. St. U. S. § 2319, providing that a tees, the amount of which was then unascertained. At the time of the conveyance, and prior thereto, Boyce, as a mortgagee of Waterhouse, had a mortgage lien upon the latter's interest in the claim, and Abbott claimed adversely to Waterhouse, which lien and adverse claim were satisfied and extinguished by Waterhouse on the date mentioned, and thereupon Boyce and Abbott joined with Waterhouse for his benefit in the conveyance to Arnott and Baird. Baird died on September 29, 1882, leaving Arnott the sole survivor of the mining partnership. Thereafter, on December 20, 1882, Waterhouse executed another deed absolute in form, conveying to Arnott certain additional mining claims and water-rights in the same county as additional security for the payment of the indebtedness secured by the first deed, and of any additional present or future indebtedness of Waterhouse to the defendants Arnott, Baird, and Van Clief. Defendant Arnott at the same time executed and delivered back to Waterhouse an agreement, reciting among other things, "that both of said conveyances [deeds of August 7, 1882, and December 20. 1882] were executed, and the legal title thereby conveyed is held in trust to secure the payment of the indebtedness of said Waterhouse to the following persons: |