statute being the consideration for the new promise. For authorities upon new promise, see Ang. on Limitations, p. 218 et seq. And the action must be brought on the new promise within four years.-See McCormick vs. Brown, 36 Cal., p. 184, and authorities therein cited. See, further, as to new promise, Smith vs. Richmond, 19 Cal., p. 476. 52. PLEADING NEW PROMISE-FOR PAYMENT OF DEBT OUTLAWED, ETC.-See Smith vs. Richmond, 19 Cal., p. 476. 53. EJECTMENT.-In ejectment a plea of the Statute of Limitations of two years, under the Settlers' Act, is no defense.-Anderson vs. Fisk, 36 Cal., p. 625. CHAPTER II. THE TIME OF COMMENCING ACTIONS FOR THE RECOVERY OF REAL PROPERTY. SECTION 315. When the people will not sue. 316. When action cannot be brought by grantee from the State. 317. When actions by the people or their grantees are to be brought within five years. 318. Seizin within five years, when necessary in action for real property. 319. Such seizin, when necessary in action or defense arising out of title to or rents of real property. 320. Entry on real estate. 321. Possession, when presumed. Occupation deemed under legal title, unless adverse. 322. Occupation under written instrument or judgment, when deemed adverse. 323. What constitutes adverse possession under written in strument or judgment. 324. Premises actually occupied under claim of title deemed to be held adversely. 325. What constitutes adverse possession under claim of title not written. 326. Relation of landlord and tenant as affecting adverse possession. 327. Right of possession not affected by descent cast. 328. Certain disabilities excluded from time to commence actions. Anunded 1873-4. When the When action cannot be brought by grantee from the State. When or their grantees years. 315. The people of this State will not sue any person for or in respect to any real property, or the issues or profits thereof, by reason of the right or title of the people to the same, unless: 1. Such right or title shall have accrued within ten years before any action or other proceeding for the same is commenced; or, 2. The people, or those from whom they claim, shall have received the rents and profits of such real property, or of some part thereof, within the space of ten years. NOTE.-Stats. 1850, p. 343. See Farish vs. Coon, 40 Cal., p. 33; Hall vs. Dowling, 18 Cal., p. 619. 316. No action can be brought for or in respect to real property by any person claiming under letters patent or grants from this State, unless the same might have been commenced by the people as herein specified, in case such patent had not been issued or grant made. NOTE.-Stats. 1850, p. 343. 317. When letters patent or grants of real propthe people erty, issued or made by the people of this State, are declared void by the determination of a competent within five Court, rendered upon an allegation of a fraudulent suggestion, or concealment, or forfeiture, or mistake, or ignorance of a material fact, or wrongful detaining, or defective title, in such case an action for the recovery of the property so conveyed may be brought either by the people of this State or by any subsequent patentee or grantee of the same property, his heirs or assigns, within five years after such determination, but not after that period. Seizin within five necessary NOTE.-Stats. 1850, p. 343. 318. No action for the recovery of real property, years.when or for the recovery of the possession thereof, can be maintained, unless it appear that the plaintiff, his ancestor, predecessor, or grantor, was seized or pos in action for real sessed of the property in question, within five years before the commencement of the action. NOTE.-Stats. 1863, p. 325. 1. REAL PROPERTY.-City of Oakland vs. Carpentier, 13 Cal., p. 540; Morton vs. Folger, 15 Cal., p. 275; Fremont vs. Seals, 18 Cal., p. 433; Clarke vs. Huber, 25 Cal., p. 596; Billings vs. Harris, 6 Cal., p. 383; Billings vs. Hall, 7 Cal., p. 3. For a digest of the above cited decisions on the several points involved see note to Sec. 312, ante, where these cases are discussed. 2. DIVISION LINES-FENCES.-As to division lines between adjacent lands, acquiescence for the time prescribed by the Statute of Limitations concerning real property may fix the division line as to the owners, etc.-Sneed vs. Osborne, 25 Cal., p. 626, and authorities cited. 3. RIGHT TO USE RUNNING WATER-ADVERSE ENJOYMENT.-To acquire a right to the use of a running stream by adverse enjoyment or prescription, it is necessary that such adverse enjoyment or prescription should have continued for a period corresponding to the time fixed by the Statute of Limitations as a bar to an entry on land, viz., five years.-Crandall vs. Woods, 8 Cal., p. 144; Davis vs. Gale, 32 Cal., p. 26. 4. ADVERSE POSSESSOR ALLOWING OTHERS BELOW TO USE WATER.-If one taking adverse possession of water, as against a prior appropriator, suffers a portion of the same to flow down to accommodate miners working below, this does not prejudice his adverse possession so as to prevent the running of the Statute of Limitations.-Davis vs. Gale, 32 Cal., p. 26. 5. WATER RIGHTS ACQUIRED BY ADVERSE POSSESSION. The right to the use of a watercourse in the public mineral lands, and the right to divert and use the water taken therefrom, is acquired by appropriation and use, the person first appropriating it being deemed to have the title, as against all the world, except the United States and persons claiming under them, to the extent that he thus appropriated it before the rights of others attached. The rights thus acquired may be held, granted, abandoned, or lost by the same means as a right of the same character issuing out of lands to which a private title exists. The right of the first appropriator may be lost, in whole or in some limited portions, by the adverse possession of another. And when such person has had the continued, uninter 23-VOL. I. rupted, and adverse enjoyment of the watercourse, or of some certain portion of it, during the period limited by the Statute of Limitations for entry upon lands, the law will presume a grant of the 'right so held and enjoyed by him.-Bealey vs. Shaw, 6 East., p. 208; Balston vs. Buested, 1 Camb., p. 463; Ricard vs. Williams, 7 Wheat., p. 59; Williams vs. Nelson, 23 Pick., p. 141; Calvin vs. Burnet, 17 Wend., p. 562; Hammond vs. Zechner, 23 Barb., p. 473; Union Water Co. vs. Crary, 25 Cal., p. 509. 6. RIGHT TO WATER BY ADVERSE USE, BY PRESCRIPTION; BURDEN OF PROOF, ETC.-The general and established doctrine is that an exclusive and uninterrupted enjoyment of water, in any particular way, for a period corresponding to the time limited by statute within which an action must be commenced for the recovery of the property or of the assumed right held and enjoyed adversely, becomes an adverse enjoyment sufficient to raise a presumption of title as against a right in any other person which might have been but was not asserted.-3 Kent's Com., pp. 441-446; Bealey vs. Shaw, 6 East., p. 214; Shaw vs. Crawford, 10 John., p. 236; Johns vs. Stevens, 3 Vermont, p. 316; Union Water Co. vs. Crary, 25 Cal., p. 504. The right which the defendants claim under the grant, which they assumed to exist, as evidenced by their adverse use and enjoyment of the water for five years, they denominate an easement. An easement or servitude may be created by grant or prescription, and when created it will pass by conveyance with the dominant estate (that is, with the estate to which it is appurtenant, as an incorporeal hereditament) attached to the servient estate, subjecting the latter to the benefit of the former. But the owner of the easement or servitude has no general property in nor seizin of the servient estate, though he may, by holding a fee in the dominant estate, have an estate of inheritance in the easement or servitude.-Wash. on Easements and Servitudes, Ch. 1, Sec. 1; Ersk. Inst., p. 352; Wolf vs. Frost, 4 Sand. Ch. R., p. 89. A grant of an estate in lands, whether corporeal or incorporeal, may be presumed from an adverse enjoyment for the period corresponding to the Statute of Limitations within which an action might have been maintained against the person holding and enjoying adversely. But what must be the circumstances under which such presumption may arise? In order that the enjoyment of an easement in another's land may be conclusive of the right claimed, it must have been adverse in the legal sense of the 319. term; that is, the right must have been asserted under 7. GENERALLY.-See note to Sec. 320, post. No cause of action, or defense to an action, arising out of the title to real property, or to rents or profits out of the same, can be effectual, unless it appear that the person prosecuting the action, or making the defense, or under whose title the action is prosecuted, or the defense is made, or the ancestor, predecessor, or grantor of such person was seized or possessed of the premises in question within five years before the commencement of the Act in respect to which such action is prosecuted or defense made. NOTE.-Stats. 1863, p. 325. 1. RENTS OR PROFITS.-See Kimball vs. Lohmas, 31 Cal., p. 159, affirming Halleck vs. Mixer, 16 Cal., p. 574. 2. IN AN ACTION TO RECOVER LANDS, the plaintiff can only recover the rents and profits for three years |