rule, should choose their public officers at the general elections, and that other modes of filling offices provisionally should be limited to cases of necessity.

Upon these considerations, and upon what we deem the soundest construction of the constitution, we hold, in accordance with the view which has generally found favor with the legislature, that a superior judge should be chosen in Madera county at the approaching regular election for a full constitutional term. Nothing decided in People v. Waterman, supra, is in conflict with this view, and, when the language of the opinion is considered with reference to the fact that the election there referred to was a general state election, it will be seen that it does not apply to this case. Let the peremptory writ issue.

We concur: HARRISON, J.; DE HAVEN, J.; VAN FLEET, J.; MCFARLAND, J.

GAROUTTE, J., being absent, did not participate in the above decision.

(4 Cal. Unrep. 824)

RICHARD v. HUPP. (No. 18,259.) (Supreme Court of California. Sept. 29, 1894.) EASEMENT-FLUME CONSTRUCTED OVER ANOTHER'S LAND-EVIDENCE OF ABANDONMENT.

1. Plaintiff constructed a flume 564 feet long in the bed of a stream to convey the water from his mine. The flume extended 400 feet on land below, owned by defendant. Eighteen years later, defendant built a dam across the stream, causing the water to flow back, but not further than the limit of his land. Held, in an action to abate the dam as a nuisance, there being evidence that the flume was built as an adjunct to plaintiff's quartz mill, that evidence that the mill was no longer in operation, and that its condition for many years had been such that it could not be used, was admissible to show an abandonment of any prescriptive easement which plaintiff may have had over defendant's land.

2. To establish a prescriptive right to an easement, the user must have been continuous, adverse, under claim of title, and with the knowledge and acquiescence of the owner of the servient estate.

3. The refusal of a motion to amend the complaint, made after the decision in the case was rendered, to conform with evidence that. the erection of the dam by defendant obstructed the flow of debris and tailings from mines above plaintiff's land, was within the discretion of the trial court.

Commissioners' decision. Department 1. Appeal from superior court, Butte county; E. A. Davis, Judge.

Action by Joseph Richard against John Hupp to abate a nuisance caused by the erection of a dam by defendant flooding plaintiff's mines. Judgment for defendant. Plaintiff appeals. Affirmed.

John Gale, for appellant. Warren Sexton and F. C. Lusk, for respondent.

SEARLS, C. This is an action to abate a nuisance averred to have been caused by the erection of a dam by defendant across a

water course in Butte county, known as "Little Butte Creek," whereby the water of said creek is caused to flow back upon and submerge the quartz mining claim of plaintiff. The cause was tried by the court, without the intervention of a jury, and written findings tiled, upon which judgment was entered in favor of defendant for costs. Plaintiff appeals from the judgment and from an order denying his motion for a new trial. Plaintiff, who is appellant here, is, and he and his grantors have been, the owners of and in possession of a quartz mining claim situate and being in section 36, township 24 N., range 3 E., M. D. M. Plaintiff and his co-owners, in 1870 and 1871, constructed a flume running from said mine about 564 feet down the bed of Little Butte creek. Said flume was built in the bottom of a rock cut from two to five feet deep, and the top of the rock cut was from three to six feet below the natural bed of the creek. All of said flume, except 160 feet of the upper end thereof, is upon land owned by the defendant. The flume was used by plaintiff and his coowners to convey water from their mine, and to some extent for placer mining. The mill of plaintiff has not been used since 1873, and the mill has gone to decay. In 1881, third parties, who had a bond from plaintiff, pumped out the mine, and took out some quartz, but, so far as appears, did not work it. The flume went to decay, and, as the court found, nothing is left of it but the ruins in the bed of the rock cut. Defendant is the owner in fee simple of the N. W. 4 of section 1 in township 32 N., of range 3 E., M. D. M., under a pre-emption settlement and entry made in 1868, and a United States patent issued in 1871 to one Nelson, the grantor of said defendant. There is also evidence and a finding as to the ownership by the defendant of a mining claim on the creek between his patented land and the lower or south line of plaintiff's quartz claim, the ownership of which, however, is unimportant to the deci sion of the case. In 1888 defendant constructed a dam across the creek upon his patented land, about 600 feet below plaintiff's mining claim, and a short distance below certain falls in the creek, for the purpose of diverting the water of the stream for mining and irrigation. The dam so constructed by the defendant is about three feet higher than the crest of the falls, and sets the water back in the stream, but does not overflow or set the water back above defendant's own land, or upon or over the mining claim of plaintiff, or injure it in any manner. That the water so set back overflows a portion of the rock cut in which plaintiff's flume was constructed, but such portion is upon defendant's patented land; and that plaintiff is not the owner thereof, and has no easement in defendant's land, or right to use the same for the purpose of maintaining a flume thereon. The findings are quite full upon all the issues, and are only stated to the extent deemed

necessary to an understanding and elucidation of the points made by appellant. At the trial, objection was made by appellant to testimony tending to show the condition of his mine; that it had not been worked since 1873; that the mill building had fallen down; the flume which carried water to the wheel had disappeared; that the wheel and machinery had gone to decay, etc.,-which objection was overruled, an exception taken, and the ruling is assigned as error.

The theory of appellant is that the testimony shows an injury inflicted by respondent upon the rights of appellant, which, if permitted to continue, might ripen into a right, and hence the interposition of equity was properly invoked, and that appellant's rights are not to be measured by the value of his property. This argument assumes an existing right in appellant, while a vital question under the pleadings related to the existence of such right. It must be conceded under the evidence that defendant's reservoir did not back the water above his own line or off his own land. If plaintiff had any easement or right of way over defendant's land for his flume it must have been by virtue of a prior appropriation, or by a continuous adverse user for a period commensurate with that fixed by the statute of limitations, viz. for five years. A right acquired by appropriation may be lost by voluntary abandonment. Evidence of nonuser during the period necessary to perfect a prescriptive right tends to show its nonexistence. There was evidence tending to show plaintiff's flume as an appurtenant to his mill and mining claim. Under these circumstances, it was proper to show that operations at the mill had been discontinued, and that its condition was, and for many years had been, such that it could not be used, not for the purpose of impeaching plaintiff's right to the mine, but to show an abandonment of the right of way, if any, over defendant's land, or such nonuser as would preclude the inference that a prescriptive title ever ripened into existence. A right acquired by prescription to an easement is measured by the extent of the continuous enjoyment, and must be adverse, that is to say, "It must have been asserted under claim of title, with the knowledge and acquiescence of the person having the prior (superior) right, and must have been uninterrupted." Water Co. v. Hancock, 85 Cal. 219, 24 Pac. 645; American Co. v. Bradford, 27 Cal. 361. "In order to constitute a right by prescription, there must have been such an invasion of the rights of the party against whom it is claimed that he would have had ground of action against the intruder." Water Co. v. Hancock, supra; Anaheim Water Co. v. Semi-Tropic Water Co., 64 Cal. 185, 30 Pac. 623. It follows that if the flume ceased to be used, and if the property in connection with which it was used was in such condition that no user of the flume could be had, it was competent to prove such fact to

show that a prescriptive right did not and could not vest in appellant to have and continue his flume upon the land of respondent.

The cause was brought to trial March 3, 1891, and submitted to the court for decision March 4, 1891. On the 14th day of March, 1891, the court filed its written decision directing findings in favor of defendant to be prepared and presented, which findings were filed April 6, 1891. After the decision was announced, and before the findings were filed, but at what precise date does not appear, counsel for plaintiff appeared in open court, and asked leave to amend his complaint so as to conform to the evidence, by averring, in substance, that for many years mining had been carried on upon Little Butte creek; and that in times of high water large quantities of tailings and mining debris have been washed down to and upon plaintiff's claims; and that, by the construction and maintenance of defendant's dam, such tailings were prevented from flowing down the creek as they would otherwise have done, and were caused to lodge upon and cover plaintiff's claim and flume, whereby he was injured and disturbed in the enjoyment of his property. The court refused to permit the plaintiff to so amend his complaint, to which ruling his counsel in due time excepted, and the ruling is now assigned as error. In the course of the trial, the witnesses, in describing the condition of the stream and the property of the plaintiff, incidentally, as it appears to us, described the conditions of the stream as to mining debris and certain dams above plaintiff's flume which had been carried out by floods and never replaced, by reason whereof the wheel of plaintiff and the flume had been to a greater or less degree submerged and clogged by the debris. The granting or refusing leave to amend under such circumstances and at such a time was a matter in the discretion of the court, with the exercise of which this court will not interfere except in case of abuse. No abuse of discretion is apparent in the present instance. It may well be that the court below saw that, if the amendment was allowed, justice would have demanded that the case be reopened, and a further trial of the new issues created thereby had. Be this as it may, no abuse of discretion is made to appear, and hence no error can be predicated on the refusal. The cases cited by appellant are either without application, or refer to instances in which the leave to amend was sought pending the trial. The case of Bradley v. Parker (decided by this court September 28, 1893) 34 Pac. 234, is on all fours with the case at bar, and what is said there need not be repeated.

Appellant contends that the findings are contradictory, indefinite, and inconsistent, and that there is no finding as to appellant's alleged title or right of possession to the flume described in the complaint. We think the findings, taken as a whole, are consist

ent, clear, and comprehensive. They may be in part epitomized as follow: (1) Plaintiff owns the mine. (2) He built the flume in 1870-71. (3) It is 564 feet long, and all of it except the upper 160 feet is on defendant's land. (4) The flume had not been used for 10 years. (5) Plaintiff is not the owner of that portion of the flume on defendant's land,— that is to say, the lower 404 feet thereof,and has no easement over said land for the purpose of maintaining said flume, and no right to use said land for the purposes of said flume. (6) That the dam does not cause water to flow back on any of plaintiff's property. (7) The dam does not cause water to flow back on plaintiff's flume. (8) The dam does submerge a part of the flume or rock cut, but the part so submerged is the property of defendant, “and plaintiff has no right or interest in or to any part of it." (9) Defendant is the owner, in possession of, and entitled to the possession of all the lands in any wise affected by the waters accumulated, flooded, or submerged by said dam. (10) Plaintiff has not sustained any injury or damage. (11) Defendant's title to the land flooded was initiated in 1868, and he constructed the dam in 1888, for a useful purpose, viz. to divert water for mining and irrigating, and is using it for such purposes. There are other findings which are in accord with the foregoing. That the evidence supports these findings we cannot doubt, and that they support the judgment is equally clear. To analyze the evidence and discuss it at length would only lead to the conclusion that plaintiff, without authority or right in him so to do, constructed the lower end of his flume upon the land of plaintiff, and that the evidence was sufficient to authorize the court below to find (1) that the user was not of sufficient duration and sufficiently continuous for five years to give to the plaintiff a prescriptive right to have and maintain the same on defendant's land; or (2) if such prescriptive right was established by user, that the same was lost by abandonment. It follows that the judgment and order appealed from should be affirmed.

We concur: BELCHER, C.; TEMPLE, C.

PER CURIAM. For the reasons given in the foregoing opinion, the judgment and order appealed from are affirmed.

(104 Cal. 248)

BURRIS v. PEOPLE'S DITCH CO. (No. 18,

294.)

(Supreme Court of California. Sept. 29, 1894.) EASEMENT-RIGHTS OF OWNER-DITCH ON ANOTHER'S LAND-ALTERATION AND REPAIR - PLEADING-SUFFICIENCY OF ANSWER.

1. The owner of an irrigation ditch has, as against the owner of land through which it runs, the right, in making repairs, to deepen it from 1 to 17 inches for a distance of 140 feet, and to gradually lower the bed thereof 1 foot

in a distance of 170 feet, where the object is to make the ditch of a uniform grade, and to remove from its bottom local irregularities, and the repairs do not increase the flow of water.

2. Where a complaint alleges a material widening and deepening of an irrigation ditch running through plaintiff's land, a denial of the allegation, followed by an averment that "on the contrary * 串 *said ditch is no wider, nor is it any deeper, * * than when it was first constructed," raises the issue as to whether the ditch has been materially widened or deepened.

*

Commissioners' decision. Department 1. Appeal from superior court, Tulare county; Wheaton A. Gray, Judge.

Action by David Burris against the People's Ditch Company. Judgment was rendered for defendant, and plaintiff appeals. Affirmed.

Daggett & Adams, for appellant. Bradley & Farnsworth, for respondent.

HAYNES, C. The defendant is the owner of a canal or ditch used to convey water from Kings river for the purpose of irrigation. This ditch was constructed in 1875, is about 20 miles long, and in its course crosses two sections of land owned by the plaintiff. The complaint charges that in December, 1887, the defendant widened and deepened the ditch upon plaintiff's lands, and prays for a mandatory injunction to compel the defendant to restore the ditch to its former condition. The defendant answered, and the issues were tried by the court, and upon the findings made judgment was entered for the defendaut. This appeal is by the plaintiff upon the judgment roll.

The court found that when said ditch was constructed across section 14 it had a width on the bottom of about 25 feet, was a little wider at the top, and was about 6 feet in depth from the surface of the ground, and from the top of the embankment about 10 feet; that on section 26 the ditch was about 30 feet wide on the bottom, was about 2 feet in depth below the surface of the ground, and from the top of the embankments its depth was about 4 feet, and that said ditch is no wider now than when first constructed, and is not any deeper, except as hereinafter stated; that in December, 1887, the defendant, against the protest of the plaintiff, entered upon said ditch to clean out the same, and increased the depth of it for a distance of 140 yards in section 14 of plaintiff's lands from 1 foot to 17 inches, and on section 26 deepened it from 1 foot at the upper end of a "170-yard stretch, tapering down to nothing at the lower end of said stretch;" that said portions of the ditch were deepened to reduce the ditch to an even and uniform grade, "said portions having theretofore been looked upon as humps in the bottom of the ditch," but that no more water is conveyed through the ditch than before. The court further found that plaintiff's lands were not thereby damaged, nor the burden increased, nor the plaintiff obstructed in the free use of any of his lands, or prevented from the comfortable en

joyment of any thereof, or that he suffered any pecuniary loss or damage.

Appellant contends that the findings show that he is entitled to the relief demanded, and asks for a reversal of the judgment, and that he have judgment on the findings. It is well settled that the owner of an easement cannot change its character, or materially increase the burden upon the servient estate, or injuriously affect the rights of other persons, but within the limits named he may make repairs, improvements, or changes that do not affect its substance. An easement of the character involved in this case is property, to the reasonable and profitable use and improvement of which, due regard being had to the rights of others, the owner is entitled. Bringing the ditch to a uniform grade by removing local inequalities, such as are stated in the findings, is not a deepening of the ditch. The prescriptive right, as to depth, is determined by the grade and general depth of the ditch, and not by local and unimportant irregularities in the bottom of it. The ditch was not widened, nor the quantity of water conveyed increased, nor the mode or purpose of its use changed. It is argued that, if defendant had the right to do what the court found was done, defendant would have the right to dig the ditch a hundred feet deeper; that in principle there is no difference between deepening it one inch and a hundred feet. There is, however, the difference between that which is material and that which is immaterial. Suppose plaintiff had acquired by prescription a private way for a few rods over his neighbor's land; that at the time he first used the way he found a tree growing in the middle of it, and instead of digging it up had cut it down so low that his wagon could pass over it, and had so used the way for five years. Would it be claimed that he might not afterwards dig up the stump? or, if he did, that his neighbor could obtain a mandatory injunction to require him to put the stump back where it grew? None of the cases cited by appellant sustain his contention. They either involve facts of a different nature, or are based upon a change of the character of the easement, or a material increase of the burden upon the servient estate. In Allen v. Water Co., 92 Cal. 138, 28 Pac. 215, principally relied upon by appellant, this court sustained the right of the plaintiff to an injunction upon the ground that the change from the open ditch to a pipe laid under ground was "a change in the character of the easement." In this case there was no change in the character of the easement, or the mode of its use or enjoyment, nor was any injury inflicted upon the plaintiff. The work done the defendant had the right to do, and the injunction was properly denied.

It is further contended that the finding that the ditch was not widened or deepened is in conflict with admissions in defendant's answer. The complaint charged a material widening and deepening, and the contention

is that this allegation is not denied, and is therefore admitted. It is conceded that the denial is not in good form, and if it stood alone would be insufficient. But the pleader, after making a literal denial as to the width and depth alleged in the complaint, added: "But, on the contrary, defendant alleges that said ditch is no wider, nor is it any deeper, through the said lands of plaintiff than it was when it was first constructed." This allegation was sufficient to put in issue the said allegations of the complaint. Way v. Oglesby, 45 Cal. 655; Goddard v. Fulton, 21 Cal. 430, at page 436; Robinson v. Merrill, 87 Cal., at page 14, 25 Pac. 162. It may be said, generally, that any allegation in an answer which, if found to be true, necessarily shows that the allegation of the complaint as to the same matter is untrue, is a good traverse, and sufficient as a denial. We see no inconsistency in the findings. The inconsistency claimed rests upon the assertion that the removal of the "humps" was a "deepening" of the ditch, -a proposition that need not be further discussed. The judgment should be affirmed.

We concur: TEMPLE, C.; BELCHER, C.

PER CURIAM. For the reasons given in the foregoing opinion the judgment appealed from is affirmed.

(104 Cal. 179)

OWEN V. MEADE. (No. 18,258.) (Supreme Court of California. Sept. 25, 1894.) PLEADING ACTION FOR ATTORNEY'S SERVICES AND PROOF ASSIGNMENT OF CLAIM - CORRECTION PENDING SUIT.

1. In an action for attorney's services, proof that the attorney's compensation was contingent on the result of litigation does not sustain an allegation that defendant agreed to pay a fixed sum for such services.

2. Where the complaint alleges that defendant agreed to pay a fixed sum for the services, evidence that such sum was a reasonable fee if its payment was made contingent on the result of the litigation is inadmissible.

3. Where an assignment of a claim failed to name the assignee, and, on the trial of an action thereon, plaintiff introduces parol evidence that he was the assignee, and that his name was omitted by mistake, and offers to have the assignment corrected by the assignor by inserting his name, the court should permit the correction.

from Department 2. Appeal superior court, Fresno county; M. K. Harris, Judge. Action by R. T. Owen against O. J. Meade for attorney's services. Judgment was rendered for plaintiff, and defendant appeals. Reversed.

Stanton L. Carter, for appellant. James Gallagher, for respondent.

DE HAVEN, J. The plaintiff sues as the assignee of one Grady, to recover the sum of $950, balance alleged to be due for professional services rendered by the said Grady in the prosecution of a certain action brought by the defendant against the county

of Fresno. The complaint, which is unveriied, alleges that the defendant expressly agreed to pay to said Grady for such services the sum of $1,000, and also alleges that the services so rendered by Grady were reasonably worth the sum of $1,000. The answer contains a general denial, and, in addition, sets out a separate defense, in which it is alleged "that the only services rendered by said W. D. Grady were done and performed under and upon a special contract and agreement with said Grady that he (said Grady) would do and perform the service to be rendered and performed under said agreement for the sum of $50," and that Grady was paid said sum before the alleged assignment to plaintiff. The action was tried by a jury, and the plaintiff recovered judgment in the superior court for the full amount demanded in the complaint; and from this judgment and order denying his motion for a new trial the defendant appeals.

1. Grady, the assignor of plaintiff, was a witness upon the trial, and testified, in substance, that he acted as the attorney for defendant in the action of Meade v. County of Fresno, under an agreement by which he was to receive for such services what is known among lawyers as a "contingent fee." In the action referred to, there was involved, among other matters, a question as to the right of the defendant here to recover interest, amounting to about $1,800, upon his original demand against Fresno county, and the witness Grady stated the following as the contract between himself and defendant in relation to the compensation he was to receive as attorney for the latter in that action: "I says, if I recover this interest, it will more than pay my fee, and save you that much money. The interest would be about $1,800. I will charge you a thousand dollars out of that, and, if I don't recover it, I shall charge you ten per cent. of what I do recover; and, if I recover nothing, I will charge you nothing." And, referring to the amount of labor performed by him in that case, the witness further stated: "I think I gave it more attention considering that my fee was to be contingent, a good one, and depended entirely upon what I recovered." The defendant moved to strike out this testimony in relation to the contingent fee, upon the ground that there was no such issue in the case, the complaint alleging that plaintiff's assignor was to receive $1,000 for his services, without any reference to the result of the action in which they were rendered. The motion was denied by the court, and the court also instructed the jury to the effect that if they found "that it was agreed by and between the defendant and Grady that, in case said Grady recovered the full amount of said claim [referring to the claim of defendant against Fresno county], with interest thereon, then the defendant would pay him $1,000, and further find said Grady did in every respect fulfill the terms of the

agreement on his part, and did recover, and the defendant did receive the full amount of said claim, with interest, then you must find for plaintiff in the sum of $950." In refusing defendant's motion to strike out the testimony in relation to the contingent fee. and in giving the instruction just quoted, the court erred. There is a fatal variance between the contract testified to by the witness Grady, and hypothetically stated to the jury in the charge of the court, and the contract alleged in the complaint. The contract alleged is that of an unconditional promise upon the part of defendant to pay to the assignor of plaintiff the sum of $1,000 for his services as an attorney in the prosecution of the action referred to in the complaint; while the evidence which the court held was relevant and sufficient, if believed, to warrant the jury in finding that the defendant made the alleged contract, was to the effect that the promise of defendant to pay was not unconditional, but contingent. There is a wide and essential difference be tween the two contracts, and proof of one will not support a finding that the other was made. The plaintiff's allegation of an absolute promise was not sustained by proof of the contingent promise, and evidence in relation to such contingent promise was not relevant to the issues made by the pleadings. Lower v. Winters, 7 Cow. 263. In the case just cited, it was said: "The contract proved is also essentially different from that declared on. The declaration states the promise on the part of the defendant to have been absolute and unconditional. The promise proved was to give $100 for the improvements, if he obtained a contract from the landlord. If he failed in obtaining a contract, he was not bound by his promise to the plaintiff. That was the express condition upon which it was made. It is true, the plaintiff proved upon the trial that the defendant had obtained a contract from Pierpont; but the fact of proving it shows its materiality, and that it ought to have been averred. The plaintiff has recovered on a contract entirely different from that on which he declared. The objection was taken below, and should have been sustained." The case of Lower v. Winters was decided under the common-law .system of practice; but, as was said by Rhoades, J., in delivering the opinion of this court in Stout v. Coffin, 28 Cal. 65: "The rule that the probata must correspond with the alle gata is not abrogated by the practice act.

* The consequences of a variance between the averments in a pleading and the proof are the same under our system of prac tice as at common law, except that they may be to a great extent obviated by amendments to the pleadings, which are allowed with great liberality." As an instance of the strictness with which the rule requiring the proof to correspond with the allegations is enforced, the following cases may be cited: