longed exclusively to them, and that they were entitled to damages in any sum from plaintiffs for taking and using it, is without any foundation in fact. The authorities cited by counsel are where no finding whatever was made upon a certain material issue raised by the pleadings, or even an attempt to make one. The grounds upon which the motion for a new trial was based and urged here upon appeal from the order practically call only for a discussion of the questions presented on the appeal from the judgment, and which we have considered. Counsel insist that the court erred in refusing to grant the motions of defendants to dismiss the action and for judgment on the pleadings, and also in denying their motion for a nonsuit; but the questions arising thereon, as suggested, have been disposed of in the discussion of the points urged on the appeal from the judgment. The plaintiffs were, we think, entitled to the use of the pasturage and feed growing upon the land. There is no provision in the lease reserving to the lessors the right to the pasturage, and unless such right was withheld from plaintiffs, who were tenants for years, by the terms or some covenant of the lease, the plaintiffs were acting within their rights when they grazed their stock upon the land. Section 819, Civ. Code; Marshall v. Luiz, 115 Cal. 625, 47 Pac. 597. Of course, it should be unnecessary to say that, if the lessees had succeeded in growing upon the land a crop of hay, or of barley or of wheat, worth harvesting, in point of quantity and quality, they would not have been justified in entirely appropriating the same for the pasturing of their stock or otherwise, without accounting to the defendants for their share thereof. But we feel convinced from the testimony adduced at the trial that, after the disappearance of the flood waters from the land, the vegetation growing thereon which was at all capable of utilization was, even for the purposes of pasturage, of comparatively little value, and that the consequence of gathering it, if, indeed it was in such condition as to have rendered it practicable to reap it, considering the cost and labor required to do so, would have been loss rather than profit. The evidence indisputably establishes the fact that the plaintiffs, who are experienced farmers, and who, from having been engaged in the business of farming for many years in the section of the state where the leased lands are situated, must be thoroughly familiar with the methods and requirements of successful farming in that locality, unremittingly strove to cultivate and grow crops upon the property, as they agreed to do, by the covenants of the lease. There was no sane reason why they should not have done so. They had equal concern with the defendants in the success of the venture, for their failure because of negligence or for any other reason within their control to make the business prosperous and profitable could not result otherwise, quite naturally, than to militate against their own welfare as well as against that of the defendants. We have carefully consulted all the authorities cited by counsel for appellants as sustaining their several contentions, and readily concede that they contain declarations of sound law, but are unable to perceive their apposition to the facts presented in the case at bar. We can find no reason for disturbing the judgment or the order. For the reasons stated in the foregoing discussion, the judgment and order appealed from are affirmed. We concur: CHIPMAN, P. CHIPMAN, P. J.; BURNETT, J. (5 Cal. App. 638) (Court of Appeal. Third District. California. May 28, 1907. Rehearing Denied by Supreme Court July 27, 1907.) 1. MANDAMUS PETITION - SUFFICIENCY WATERS AND WATER COURSES-IRRIGATION DISTRICTS-BONDS-ASSESSMENTS. Laws 1897, p. 267. c. 189, § 39, provides that, in case the board of directors of an irrigation district refuse to make an assessment to pay interest on bonds or bonds maturing, the board of supervisors of the county in which the office of the board of directors is situated shall cause an assessment to be made, etc. Held that where, in mandamus to compel supervisors to make an assessment, it appeared that all the land of the district was situated in one county, the petition was not insufficient because it failed to state that the office of the board of directors was situated in the county where the proceedings were brought. 2. WATERS AND WATER COURSES-IRRIGATION DISTRICTS-BONDS-ASSESSMENTS-LEVY. Laws 1897, p. 267, c. 189, provides that the board of directors of an irrigation district shall levy an assessment sufficient to raise annual interest on bonds, and in any year in which the bonds shall fall due must increase the assessment to an amount sufficient to pay the principal, and, in case of the neglect or refusal of the board of directors to cause such assessment and levies to be made, the assessment shall be made by the county supervisors of the county in which the office of the board of directors is situated "in like manner and with like effect as if the same had been made by the board of directors, and all expenses incident thereto shall be borne by the district." Held, that expenses of a levy were properly included in the levy made by the supervisors. 3. MANDAMUS WATERS IRRIGATION DISTRICTS BONDS ASSESSMENT COMPELLING LEVY. Mandamus was properly awarded to compel supervisors to make an assessment and levy under the statute, though petitioner's demand was represented by a judgment against the district rendered in an action on the district's bonds. 4. WATERS AND WATER COURSES-IRRIGATION DISTRICTS - BONDS ASSESSMENTS - LEVY -STATUTES-VALIDITY. Section 39, providing for an assessment and levy by the board of supervisors, is not violative of Const. art. 11, § 12, declaring that the Legislature shall have no power to impose taxes upon counties or public or municipal corporations, but may by general laws vest in the "corporate authorities" thereof the power to assess and collect taxes. 5. SAME. Laws 1897. p. 267. c. 189. § 39. provides that the board of directors of an irrigation district shall levy an assessment sufficient to raise the annual interest on outstanding bonds, and in any year in which any bonds shall fall due must increase the assessment to an amount sufficient to raise a sum sufficient to pay the principal of the bonds as they mature; and provides that, in case of the neglect of the directors so to do, an assessment and levy shall be made by the board of supervisors of the county in which the office of the directors of the district is situated. Held, that it is not necessary that the directors or supervisors make several assessments for each year, but the board of supervisors may make one levy and assessment for the payment of the aggregate amount of the installments of interest and principal due in successive years. 6. MANDAMUS-IRRIGATION DISTRICTS-BONDS -ASSESSMENTS-LEVY-JUDGMENT. In mandamus by a judgment creditor of an irrigation district to compel the supervisors to make an assessment and leyy under Laws 1897, p. 267, c. 189, § 39. a judgment awarding the writ was not erroneous because it made no provision for other creditors. Appeal from Superior Court, Kern County; Paul W. Bennett. Judge. Mandamus by the Nevada National Bank of San Francisco to compel the board of supervisors of Kern county to levy and collect a tax for the payment of a judgment in favor of petitioner against the Poso irrigation district. From a decree awarding the writ, respondents therein appeal. Affirmed. J. W. P. Laird, C. L. Claflin, H. L. Packard, and G. W. Zartman, for appellants. H. V. Kimberlin and G. H. Smith, amicus curiæ. Heller & Powers, for respondent. BURNETT, J. The judgment or decree from which the appeal has been taken is as follows: "The alternative writ of mandate issued in this action having been served on defendants, and the said defendants having appeared and answered the verified petition of plaintiff, and the issues thereby joined having been brought for trial before this court sitting without a jury this 13th day of February, 1905, Messrs. Heller & Powers appearing as attorneys for plaintiff and J. W. P. Laird, Esq., appearing as attorney for defendants, and documentary and oral evidence having been introduced, and the matter having been argued and submitted, this court finds that all of the allegations set forth in plaintiff's petition or complaint are true; and that the Poso irrigation district is a municipal corporation organized under the laws of the state of California, and is wholly situated in the county of Kern, state of California; and that the superior court of the county of Kern, state of California, in the action therein pending, wherein the above-named plaintiff was plaintiff, and the said Poso irrigation district was defendant, duly gave, made, and entered a judgment, requiring said Poso irrigation district to pay the said plaintiff the sum of $12, 262.96, together with interest thereon, at the rate of seven (7) per cent. per annum, from the 26th day of August, 1902, and for other purposes; and that said Poso irrigation district has no funds to be applied to the payment of said judgment; and that there is no property belonging to said Poso irrigation district upon which execution could be levied; and that the officers of said irrigation district have refused and neglected to levy an assessment or do or perform any of the acts provided by law, to assess the real property in said district, for the purpose of paying the money due on said judgment; and that the defendant, board of supervisors, after petition to do so to it, has also refused to take the necessary steps to levy an assessment on the property of said district. or to cause any levy of any assessment to be made on the property in said district, or to take any steps for the purpose of assessing said district, and collecting the taxes on the property in said district, in order to pay said judgment; and that plaintiff is a party beneficially interested and has no mears of collecting its judgment without the action of said defendant; and that said plaintiff has no plain, speedy, adequate, or other remedy in the ordinary course of law. Now, therefore, it is hereby ordered, adjudged, and decreed that said defendants immediately proceed to levy an assessment in accordance with law upon the real property within the Loundaries of said Poso irrigation district which is subject to an assessment of said district sufficient to pay said judgment of plaintiff, to wit, the sum of $12,262.96, together with the interest thereon at the rate of seven (7) per cent. per annum from the 26th day of August, 1902, and also all expenses incident to the making of said levy and assessment and incident to the collection of said assessment, which expenses shall be estimated by the said defendant, board of supervisors, and shall be included within said levy and shall also include plaintiff's costs in this action, which are hereby taxed at $against said defendant, and which shall be included within said levy, and when sufficient money is collected the defendant shall pay to plaintiff from the sum collected whatever amounts are collected on said assessments until said plaintiff shall be paid the said amounts hereinbefore referred to, to wit, the sum of $12,262.96, together with interest thereon at the rate of seven (7) per cent. per annum from the 26th day of August, 1902, and the costs of suit herein. is further ordered, adjudged, and decreed that a peremptory writ of mandate shall be issued to said defendants commanding them to forthwith do the acts herein ordered that they shall do, and that a return day be inserted in said writ as on or before the 15th day of September, 1905. Paul W. Bennett, Judge of the Superior Court." And it The action is based upon the provisions of section 39 of "An act to provide for the organization and government of irrigation districts, approved March 31, 1897" (Laws 18997, p. 267, c. 189). which is in the following language: "Sec. 39. The board of directors shall then levy an assessment sufficient to raise the annual interest on the outstanding bonds, and in any year in which any bonds shall fall due must increase said assessment to an amount sufficient to raise a sum sufficient to pay the principal of the outstanding bonds as they mature. The secretary of the board must compute and enter in a separate column of the assessment book the respective sums, in dollars and cents, to be paid as an assessment on the property therein enumerated., When collected, the assessment shall be paid into the district treasury and be apportioned to the several proper funds. In case of the neglect or refusal of the board of directors to cause such assessments and levies to be made as in this act provided, then the assessment of property made by the county assessor and the state board of equalization shall be adopted, and shall be the basis of assessment for the district, and the board of supervisors of the county in which the office of the board of directors is situated shall cause an assessment roll for said district to be prepared, and shall make the levy required by this act, in the same manner and with like effect as if the same had been made by said board of directors, and all expenses incident thereto shall be borne by such district. In case of the neglect or refusal of the collector or treasurer of the district to perform the duties imposed by law, then the tax collector and treasurer of the county in which the office of the board of directors is situated must, respectively, perform such duties, and shall be accountable therefor upon their official bonds as in other cases." The bonded indebtedness herein involved was incurred prior to the enactment of said statute, but this circumstance is unimportant in view of the fact that the act of 1889, passed prior to the issuance of the said bonds and amending the act of 1887, known as the "Wright Irrigation Act," contains a provision identical, as far as the question before us is concerned, with said section 39 of the act of 1897.. The judgment herein is vigorously assailed by numerous counsel, including a learned "friend of the court," and we have examined with care the points and cases to which our attention has been directed, and we shall proceed to state our views thereon in the order in which the various propositions are advanced in the briefs. The position of appellants, as stated by counsel, is that the judgment must be set aside, and the writ vacated, because: "(1) The petition upon which the writ is based is wholly insufficient to give the court jurisdiction to issue the peremptory or any writ herein. (2) The court exceeded its authority and jurisdiction in its direction to the board of supervisors by said writ: (a) In directing a levy and collection for plaintiff's costs expended in the present action. (b) In directing a levy for expenses to be incurred in such levy and collection. (c) In directing said board to estimate such expense for the purpose of levy and collection. (d) In directing said board to pay over to said plaintiff, when collected, the amounts due it on its said judg ment. (3) The court exceeded its jurisdiction in directing said board of supervisors to make levy to pay said judgment. (4) That section 39, upon which this proceeding is based, is unconstitutional and void." In addition to the foregoing, the brief filed by "amicus curia" presents specifically these considerations: “(1) Upon the failure of the board of directors or of the board of supervisors, in any year, to levy an assessment for the interest, or the interest and installments of principal, falling due in that year, its power ceases. In other words, the act does not confer upon the directors or the board the power to make a general assessment for the aggregate of indebtedness accruing for the previous years, or, as in this case, for a period of 16 years. The power, if it exists, can only be to make separate annual assessments for each year based on the values of that year; for otherwise the obligations of the parties would be varied, and the act would be unconstitutional. But this, from the nature of things, is impracticable, at least after the lapse of a year or two, and it is therefore submitted that the provision of the amendment of 1839, conferring the power of assessment upon the board of supervisors, is, on this account, a mere brutum fulmen, and practically void. (2) By the provisions of the statute the taxes collected constitute a common bond fund for the benefit of all the creditors, and all have a common interest in it. * A suit, therefore, to dispose of this fund, cannot be maintained without making the others parties, or suing for their common benefit. Code Civ. Proc. §§ 378, 379, 382, 389, and Meyer v. City of San Francisco (Cal. Sup.) 88 Pac. 722. (3) If in this state the equitable doctrine as to laches be held to apply to proceedings of the court generally (Grain v. Aldrich, 38 Cal. 514, 99 Am. Dec. 423), a very extreme case of laches is here presented." In support of their first proposition, it is urged by appellants that the petition for the writ of mandate is fatally defective, in that it does not appear therein that the office of the board of directors of the irrigation district is situated in Kern county, where the suit was brought. The contention is based upon the language of said section 39 that "the board of supervisors of the county in which the office of the board of directors is situated shall cause an assessment," etc. There was no corresponding allegation nor finding in the case at bar, and it is claimed that this is jurisdictional. As far as the absence of any finding is concerned, no such issue was presented, and it is hardly necessary to cite authorities to the point that the findings must be confined to the issues made by the pleadings. But appellants are wholly at fault in their claim that the want of jurisdiction is disclosed by the allegations of the petition. They have entirely mistaken the rule as applied to the jurisdiction of courts of record. The presumptions here are in favor of jurisdiction, and not against it. There can be no question that, under the authority with which superior courts are clothed by the Constitution, the superior court in and for Kern county, in the exercise of its general powers, had jurisdiction to entertain an application for a writ of mandate against the supervisors of that county. If there were any exceptional circumstances which, if dis closed, would divest the court of jurisdiction, in the absence of any allegation concerning them in the complaint, the burden is upon the defendants to present them. Since it does not affirmatively appear that by reason of the peculiar condition suggested the court did not have jurisdiction, by virtue of its general authority, the presumption must be indulged against appellants' contention. But, again, it is manifest that the provision was intended for a case where the irrigation district comprised land in more than one county. Here it appears that it is confined entirely to Kern county. There seems to be no merit in this contention, and we have probably devoted to it more attention than it deserves. In the specification of particulars wherein it is alleged the court exceeded its authority in its direction to the board of supervisors, exception is taken to that portion of the decree providing for the costs of the present action and expenses to be incurred in the levy and collection of the judgment. It is insisted that said section 39 limits the power of the board of directors of the district to the levy of an assessment sufficient to to raise the annual interest on the outstanding bonds and in any year in which any bonds shall fall due to increase such assessment to an amount sufficient to pay the same as they mature, and that the delegation of authority to the board of supervisors cannot be more comprehensive than the authority conferred upon the board of directors in the first instance. The consideration of the costs of the present action may be eliminated, as the record shows that no amount was awarded for costs. The expenses of the levy and assessment would seem to be a legitimate portion of the burden to be borne by the property owners in whose behalf the bonded indebtedness was incurred. In fact, said section 39 makes provision for it in this language: "And all expenses incident thereto shall be borne by such district." If we understand the position of appellants, it is that other provision is made for said expenses in case of the levy by the board of directors, and, since there is a delegation of power to the supervisors, their authority is limited to the method pointed out for the directors to pursue. Of course, the act contemplates that the board of directors will do its duty, and ample provision is made in detail for incurring and liquidating a bonded indebtedness. do not understand that in the technical sense the authority conferred upon said directors is sought to be delegated to the board of supervisors. Rather is it true that the board of directors is empowered to bind the district by taking certain steps, and the authority of the said board to liquidate an indebtedness must be exercised in the manner pointed But in case of its refusal or neglect to act, then the board of supervisors is granted directly by the Legislature the power to levy an assessment to provide not only for the payment of the amount due, but also for the expense of said levy. The statute does not expressly provide that the expense shall be included in said levy, but it is fairly implied, and any other construction seems unreasonable. The context clearly shows, we think, that in this way the expenses "shall be borne by the district." The case of Boskowitz v. Thompson, 144 Cal. 724, 78 Pac. 290, cited by appellants, is not in point. That was not a case where the directors refused to act. It was a suit to enjoin the collection of an assessment, and no such question was considered as is involved here in reference to the authority of the board of supervisors in the premises. The important point decided therein is shown by the following quotation: "A court of equity, as such, in the absence of statutory authority, has no jurisdiction to enforce a lien that is created by statute, for the enforcement of which the statute has provided a mode. The enforcement of the lien in such case can be only in the mode provided by the statute." It was also held that the court should have determined the validity of the assessment which it was sought to collect. There is nothing in that case inconsistent with our position here, as we hold that the court below directed the board of supervisors to follow the mode that is at least implied by the statute. The objection that the board of supervisors is without authority to estimate the expenses of levying and collecting the assessment is also without persuasive force. As suggested by respondent, no one is presumably better fitted to make the estimate than the supervisors, and we think it is implied that they should do so when an emergency arises such as in the case at bar. The position taken by appellants that the lower court exceeded its jurisdiction in di recting the board of supervisors to pay over to the plaintiff from the sum collected a sufficient amount to satisfy plaintiff's demand seems to be in accord with the statute. Respondent rather concedes that the judgment is erroneous in this respect, but claims that it "does not affect the validity of other portions of the decree," and that the decree can be modified by striking out that provision, leaving other portions of the decree in full force and effect. Since the act provides in the first instance that the tax collector and treasurer of the district shall collect and receive the money, and, "in case of neglect or refusal of either of them to perform the duties imposed by law, then the tax collector and treasurer of the county in which the office of the board of directors is situated must respectively perform such duties and shall be accountable therefor upon their official bonds as in other cases," and as there is no authority to depart from the provisions of the act, the portion of the decree complained of should be stricken out. There is no good reason, though, why this should necessitate a new trial. We cannot see any merit in appellants' contention stated by them as follows: "The petition to the board of supervisors as well as the writ prays that a levy to pay the judgment therein set out be made by said board of supervisors in conformity with the act in question and more particularly in conformity with subdivision 39 thereof. As we have already pointed out, section 39 relates specially to interest on outstanding bonds. The decree and the writ directs the levy to pay a judgment. The original contract between plaintiff and the district is so completely merged in the judgment, in a new form of contract, that the court cannot see that it is for interest on outstanding bonds and therefore payable by the provisions of section 39." A large number of cases is cited in support thereof, but their effect seems to have been misapprehended. The quotation made by appellant from Taylor v. Root, #43 N. Y. 344, may be accepted as a fair expression of what is held in all of them: "The cause of consideration of the judgment is of no possible importance; that is merged in the judgment. When recovered the judgment stands as a conclusive declaration that the plaintiff therein is entitled to the sum of money recovered. No matter what may have been the original cause of action, the judgment forever settles the plaintiff's original claim. This assent may have been reluctant, but in law it is an assent, and defendant is estopped by the judgment to dissent. Forever thereafter, any claim on the judgment is setting up a cause of action on the contract." It is hard to perceive how appellant can obtain any comfort from the quotation. It is too well settled to be controverted that a judgment does not create a new obligation. It simply presents in a different form the obligation already incurred, and, besides, it affords the highest sanction of the law to the validity of the obligation. It seems to be established by the authorities that the proper course to pursue when municipalities refuse to pay their bonds is by an action at law to establish the validity of the bonds and the amount due thereon, and then to apply for a writ of mandate to compel the proper authorities to raise what is required to satisfy the debt by the assessment and levy provided by statute. The following cases cited by respondent so hold: Heine v. Commissioners, 19 Wall. (U. S.) 655, 22 L. Ed. 223; Herring v. Modesto Irrigation District (C. C.) 95 Fed. 705, 710; Marra v. San Jacinto & Pleasant Valley Irrigation District (C. C.) 131 Fed. 780, 789; Board of Supervisors of Riverside County v. Thompson, 122 Fed. 860, 59 C. C. A. 70. The lat-' ter case was similar to the one at bar, in |