the plaintiff was the owner, etc., or facts from which the ownership of plaintiff conclusively followed, we would perhaps reverse the judgment on the ground that there was no finding such as is required by law upon the fact of adverse possession.

But the writing filed by the court below as its "decision" or findings, (which is a very different thing from an opinion), is always sent up here, and constitutes a part of the judgment-roll: C. C. P., 670. It is only because the findings, sufficient or insufficient, are sent up as a part of the judgment-roll, that we can determine whether a particular finding is or is not sufficient. In one sense an insufficient finding is not a finding, because it is not determinative of an issue, but in another sense an attempted finding found in the decision, filed as such by the court below, is a finding. It is to be treated as a finding in so far as it enters into the record to be reviewed in this court, and in that it clearly shows that findings were not waived by the parties. It has been held here, in support of the presumption that the trial court has done its duty, we will, (where there are no findings,) presume that findings were waived, unless the contrary is made to appear by bill of exceptions. But this presumption cannot have force as against a writing on its face designated the "decision," filed by the court below, clearly intended to be a finding upon a material issue, and showing that the court ordered a judgment in favor of defendant, because the evidence proved that one of the pleas of the defendant was true. The court below having attempted to find upon one of the material issues, (the evidence not sustaining the finding), and having failed to find upon another material issue, the judgment must be reversed.

We return to the question: Did the evidence justify the finding in favor of defendant upon the plea of the code limitation?

In considering this question, in the absence of a finding that plaintiff was or was not the owner or entitled to the possession of the demanded premises, or of facts showing such right of possession, we must assume that plaintiff deraigned title from the Jimeno grantees, which is the right to establish which the evidence on the part of plaintiff was addressed.

The action was commenced April 15, 1875. It is admitted that the demanded premises are entirely within the limits of the Jimeno grant. There is no evidence that defendant ever had actual possession of the Jimeno grant, or of any part of the lands claimed by plaintiff, until the year 1872. Prior to that year the land in controversy was an open common on which ranged the stock of defendant and other persons. There was evidence tending to prove that on divers occasions defendant had cut up the dead timber or down trees and removed the wood from the land. Such fugitive acts did not of themselves constitute an adverse possession.

It is claimed, however, that defendant had been in adverse possession of the land in controversy for more than the statutory period, because, in the year 1868, he had received from a stranger a deed purporting to convey a tract, "known as the Mizner tract," which

comprehended within its bounds land lying without the Jimeno grant, and also land lying within the Jimeno grant-the latter including the premises here demanded-and had been in actual possession of the portion of the land without the Jimeno grant for more than five years when this action was commenced.

The question presented therefore is: Can a defendant who claims under color of title a larger tract which includes the land to which plaintiff has shown title in fee, establish an adverse possession as to plaintiff's land (which has remained vacant and unoccupied,) by proving an actual possession of a portion of the larger tract-such possession not extending to any of the land claimed by plaintiff.

The fourth subdivision of section 323 of the code of civil procedure provides:

"Where a known farm or single lot has been partly improved, the portion of such farm or lot that may have been left not cleared, or not inclosed according to the usual course and custom of the adjoining country, shall be deemed to have been occupied for the same length of time as the part improved and cultivated."

It is apparent that, for a person to acquire a constructive adverse possession of land, he must actually oust the true owner of some part of his land. The owner is not disseized of his land merely because one stranger may pretend to convey it to another, and he is not driven to any assertion of his legal rights, because one with or without title shall occupy lands not his.

It is but necessary to state the facts to demonstrate that the fourth subdivision of section 323 does not apply to them.

Even, however, if the acceptance of a deed of the "Mizner tract" by defendant, and his actual possession of a part of that tract, could be held to create a presumption that he asserted an absolute right to the whole "exclusive of any other right," such presumption would, in the case before us, be overcome by defendant's own testimony. As a witness he stated that prior to 1872 he had fenced only the portion of the land claimed by him, lying to the west of the Jimeno grant, and west of the land claimed by plaintiff, knowing there was a dispute as to the title of this land now in controversy;" that he "had not thoroughly understood how it was, he didn't want to go too far until he could find out," and that in 1872 he enclosed the land claimed by plaintiff "when he found out that Col. Hager (alleged agent of plaintiff) never had any possession." These declarations of defendant prove he did not assert an absolute and unqualified right to the land in controversy until, at least, the year 1872.

Judgment and order reversed and cause remanded for a new trial. Ross, J., SHARPSTEIN, J., THORNTON, J., MYRICK, J., MORRISON, C. J. Concurred.

No. 7915.

MANUEL, Admr'x, v. ESCOLLE.

Department Two. Filed March 21, 1884.

ACCOUNTING BETWEEN PARTNERS-PRESENTATION OF CLAIM. In an action of accounting between a surviving partner and the administratrix of his deceased partner, the surviving partner is entitled to an allowance for sums drawn by the deceased partner from the partnership during his lifetime, notwithstanding the claim for the sum so drawn has never been presented to the administratrix of the deceased partner for allowance and approval.

APPEAL from a judgment of the superior court for Monterey county in an action for an accounting. The opinion states the facts. Gregory & Shipley and Webb & Wall, for the appellant. S. F. Geil, for the respondent.

The COURT. The defendant and plaintiff's intestate were partners, and the complaint is filed to obtain an accounting and settlement of the partnership affairs, the plaintiff alleging that there is due from defendant the sum of $3192.22. An accounting was had, and the court found a balance of $265.90 due plaintiff, for which judgment was rendered. In arriving at this conclusion, the court heard evidence regarding sums drawn from the partnership by the plaintiff's intestate during his lifetime, and charged the plaintiff as representative therewith. Plaintiff claims this to be error, and claims that defendant, in order to have the benefit of the allowance, should have presented to the administratrix and judge, for allowance and approval in course of administration, the amount which he claimed as an allowance in this action.

We are of opinion that the allowance and approval by the administratrix and judge were not pre-requisites to the right of the defendant to have the accounts adjusted and the amount claimed allowed as an off-set in the accounting.

Section 1585, C. C. P., seems to be clear and explicit as to the powers and duties of the surviving partner. Judgment and order affirmed.

No. 9400.

HACKLEY V. CRAIG.

Department Two. Filed March 21, 1884.

APPEAL FROM JUSTICE'S COURT-JURISDICTION OF-The supreme court has no jurisdiction of an appeal from a judgment of the superior court, affirming a judgment of the justice's court, in an action brought to recover one hundred and eighty dollars, with interest and costs.

THIS action was originally commenced in the justice's court of the city and county of San Francisco, for the recovery of one hundred and eighty dollars, with interest and costs. Judgment was given in favor of the plaintiff. On appeal to the superior court such judgment was affirmed. This appeal is taken from the judgment of the superior court.

J. H. Meredith for the appellant.

York & Whitworth for the respondent.

The COURT. This court has no jurisdiction of this appeal.
Appeal dismissed.

No. 8033.

WIDEMAN V. FRANKS.

Department Two. Filed March 21, 1884.

FRAUDULENT TRANSFER EVIDENCE HELD SUFFICIENT TO JUSTIFY the finding that the sale under which the plaintiff claims title was fraudulent and void as to his vendor's creditors.

APPEAL from a judgment of the superior court for Monterey county, entered in favor of the defendant, and from an order denying the plaintiff a new trial. This was an action to recover the value of certain sheep. The defendant, a sheriff, justified under an execution against one Alvarado the plaintiff's vendor. The further facts appear in the opinion.

A. S. Kittredge, for the appellant.

D. M. Delmas, for the respondent.

The COURT. We think the evidence sufficient to justify the finding that the transaction between Alvarado and plaintiff was fraudulent and void as to the creditors of the former.

Judgment and order affirmed.

No. 9392.

ELLIOTT, Administrator, etc., v. PATERSON, Judge, etc.

Department Two. Filed March 21, 1884.

SUBSTITUTION OF ADMINISTRATOR-MANDAMUS TO COMPEL. Mandamus does not lie to compel the substitution of an administrator in the place of a deceased plaintiff, and to btain a re-trial of an action in which a judgment of non-suit was entered after the death of plaintiff. Such judgment is not void on its face, and should be set aside before an applica o for mandamus is made by the administrator.

APPLICATION for a writ of mandate. The judgment referred to in the opinion of the court was one of non-suit rendered against a plaintiff after his death, and before the fact of his death was brought to the attention of the trial court. Subsequently the petitioner, as administrator of such plaintiff, suggested his death and asked to be substituted in his place, and that the case be tried again. This motion the court denied.

Byers & Elliott, for the petitioner.

R. B. Hall, for the respondent.

By the COURT. Application for a writ of mandate. We are of opinion that the writ should not issue. So long as the judgment stands, the judgment is not void on its face. The petitioner should procure the judgment to be set aside before making application for mandamus.

Writ denied.

RIPARIAN PROPRIETORS AND RIPARIAN RIGHTS ON PRIVATE STREAMS.

THE preceding discussion has been exclusively confined to the rights of appropriating and using the waters of public streams, flowing entirely through the public lands of the United States, before any private owner has acquired from the government, by patent or otherwise, the title to a tract or tracts of land upon their banks. All the decided cases heretofore cited, and all the judicial opinions, except perhaps a few dicta in one or two of the very earliest California cases, have distinguished between the appropriation from these public streams, and the rights to the water after the land, or any part of it, bordering on a stream has passed into the ownership of private proprietors. In the recent decisions, the court most carefully guards against any inference that they affect the rights of such owners, and expressly distinguishes between the rules laid down governing the taking and use of water from public streams, and those relating to "riparian proprietors" and "riparian rights" properly so called. I purpose now to examine the position of these "riparian proprietors," and to ascertain, as far as possible, what are their "riparian rights," under the law of the Pacific communities. If, before any appropriation whatever has been made of the waters of a stream hitherto wholly public, a private person acquires from the government the title to, and thus becomes the absolute owner of, a tract of land through which such stream runs, or even lying on one of its banks, although he makes no actual diversion of the water, an entirely new element is introduced into the problem. He is clearly not embraced within the operations of the doctrines heretofore explained; he is a true "riparian proprietor; " his own rights over the stream are as complete and perfect as though all the other lands on its borders were held by private owners; the unrestricted right of diverting and using the water for some beneficial purpose by any prior appropriator does not exist against him. A fortiori is this so, where many owners have acquired title to different tracts abutting on the stream, and finally where all the lands bordering