Supreme Court of California.

[July Term, 1878.]

[No. 5830.-Filed August 12, 1878.]

WM. PRESCOTT, Plaintiff and Appellant.

VS.

JOHN SALTHOUSE, GREGORY SANCHEZ, and ALBERT SPITS, Defendants and Respondents.

Appeal from the Twentieth District Court, San Benito County,

BELDEN, Judge.

DISMISSAL OF APPEAL.-ATTORNEY OF RECORD.-An order was made, at trial by the Court below, ASSOCIATING Julius Lee as attorney of Record with Baggs & Tully for the Plaintiff. The Code of Civil Procedure only provides for a SUBSTITUTION,-in two modes,-in either of which, WRITTEN NOTICE must be given the adverse party. Without this, Mr. Lee, acting as sole attorney, conducted this appeal, hence, HELD, that it must be and is dismissed.

STATEMENT OF FACTS.

On and prior to February 14, 1867, the plaintiff, and defendants, with other parties, were in possession and occupation of certain United States public lands in San Benito County, still unsurveyed, each having his portion separately enclosed, which claims and enclosures did not conform to the survey and lines afterwards established.

Plaintiff obtained a patent by pre-emption for his claim, then brought suit for certain portions of his claim, which were within the enclosures of Salthouse and Spits.

Defendants admit plaintiff's title, but claim rightful possession of the fractional tracts they occupy, based upon an agreement made in writing on Feb. ruary 14, 1867, to convey to each other, upon acquiring title, any such portions as should prove to fall within their respective enclosures, upon survey. The case being tried by the court, without a jury, the finding was that plaintiffs do not recover for the land, but that, upon defendant Salthouse paying to plaintiff $116.31, he should convey to Salthouse the seventeen acres, and a fraction lying in his enclosure; and that upon payment by Spits, of $4.00 to plaintiff, he should convey to him the forty-four hundredths of an acre, lying within his enclosure.

It will be seen that the decision on the appeal is not upon the merits of the case, but the appeal is dismissed upon the following showing of the respondent: "The appeal from the order overruling the motion for a new trial cannot be considered, because the appeal is not taken by and through an attorney of record in the action, and because the motion for a new trial was not made by an attorney of record in the case; which objection was taken before the respondents proposed any amendments to the statement."

Julius Lee, attorney for plaintiff and appellant.

William Matthews, attorney for defendants and respondents.

(Tully and Baggs, original attorneys for plaintiff)

OPINION BY THE COURT.

Upon trial of this action judgment was rendered for the defendant. Subse

quently Julius Lee, Esq., subscribing himself" Attorney for Plaintiff," served upon the attorney for the defendant a notice of intention to move for a new trial, and in due time thereafter presented to the Judge who tried the cause a proposed bill of exceptions in support of the motion for a new trial. The reguarity of the service of the notice and presentation of the bill of exceptions were duly objected to by the attorney of the defendant, on the ground that Mr. Lee was not the attorney of record of the plaintiff, and was therefore not competent to give a notice or present a bill of exceptions in the cause. These objcctions were duly noted and preserved in the bill of exceptions sent up in the record. The Court below denied the motion of the plaintiff for a new trial, and thereupon Mr. Lee, as attorney for the plaintiff, filed a notice of appeal from the judgment and order denying a new trial, and caused service thereof to be made upon the attorney for the respondent, by a transmission of a copy through the postoffice.

At the argument here the appeal from the judgment was dismissed, because not brought within one year after the entry of the judgment below.

The counsel for the respondent insists that the appeal from the order deny. ing a new trial must also be dismissed, because Mr. Lee, by whom the procedure on appeal is conducted, is not the plaintiff's attorney of record.

Mr. Lee certainly was not an attorney of record for the plaintiff at the commencement of the action, nor did he thereafter appear therein in anywise, previously to the trial. At the trial, however, an order of the Court below was made as follows: Ordered, that Julius Lee be, and is hereby associated as attorney of record with Messrs. Baggs & Tully, for the plaintiff, etc." This order was made on the fifth day of August, 1875, and the clerk having omitted to enter it in the minutes, it was subsequently, and on August 8, 1876, entered therein, nunc pro tunc, as on the former day.

Such an order-that is, an order associating a new attorney-is unknown to the practice as prescribed by the Code of Civil Procedure. That Code provides for the substitution of one attorney for another, either upon the consent of the superseded attorney or upon the application of the client, after notice to the attorney of record. (Code Civil Procedure, sec. 284, et seq.) Upon such a change, made in either mode, written notice must be given to the adverse party, and until such notice given the former attorney must be recognized. (Id. sec. 285.) It follows, therefore, that even if the nunc pro tunc order is to be regarded as operating a substitution of Mr. Lee, it was ineffectual for want of the prescribed notice.

But as seen already, it was, in its very terms, merely an association of Mr. Lee with the attorneys of record for the plaintiff. It did not, in any view, purport to authorize him to act solely as the attorney for the plaintiff, but only in conjunction with the other attorneys for the plaintiff, who had not been superseded or removed.

The notice of intention to move for a new trial was, however, not given by Mr. Lee, as attorney for the plaintiff, associated with the other attorneys for the plaintiff, but as sole attorney of record of the plaintiff-a position in which, as observed already, the nunc pro tunc order did not purport to place him.

If Mr. Lee desired to appear at the trial as counsel for the plaintiff, an order of the Court was not necessary to enable him to do so.

We think, therefore, that the objections taken by the counsel for the respondent must prevail, and the appeal from the order denying a new trial must be dismissed; and it is so ordered.

[No. 5743.-Filed August 12, 1878.]

J. P. CAVE, et als., Plaintiffs and Respondents.

VS.

M. H. CRAFTS, et als., Defendants and Appellants. Appeal from Eighteenth District Court, San Bernardino County,

MCNEALY, Judge.

WATER Right Appurtenant to LAND.-The purchase of land carries with it all the apparent benefits and easements, as previously enjoyed, without any EXPRESS reservation or grant and the word "appurtenances" is not necessary to such conveyance. The grant of the PRINCIPAL carries the INCIDENT.

AN "EASEMENT to real estate granted is a privilege OFF and BEYOND the local boundary of the land :-in this case of conducting water through the lands retained by the common grantors of the plaintiffs and defendants; and no subsequent act of their grantor could divest them of their right. But to acquire a RIGHT to water by ADVERSE USE for more than five years, the use must be OPEN, as of RIGHT, also PEACEABLE. If disputed, or interrupted, however slightly, by the owners, the acquisition of such right is prevented.

The existence of an easement will support an action for trespass.

The Supreme Court have repeatedly held, that, where the court below has assumed the denial of all the material allegations, the insufficiency of that denial cannot be pleap

here.

The Act of Congress, passed July 26, 1866, "granting right of way to ditch and canal owners over the public lands," conferred and confirmed rights to waters previously appropriated, for AGRICULTURAL purposes.

STATEMENT OF FACTS.

Action brought to restrain one defendant from the undue use of the water of a certain irrigating ditch in San Bernardino County; and its unauthorized use by the others.

Plaintiffs claim that from and ever since May 1, 1853, they and their grantors have owned the water ditch known as the "Mill Creek Water Ditch," with the exclusive right to divert into it, for agricultural and irrigating purposes, all the flow of water of "Mill Creek," from which it runs.

This right they exercised fully up to June 23, 1870, when the defendant Crafts acquired a limited interest in the same, i. e., the full flow of the water during certain hours of certain days only. Other certain parties also had limited rights to the water, for certain hours of certain days respectively, which they used accordingly. Subject to all these rights, the remaining plaintiffs in this case ciaimed the exclusive right to the full flow of the water at all times, and their rights began on January 30, 1875, and from which time certain numerous parties have used the water for irrigating purposes; and from June 20, 1875, have frequently, up to the time of this action, used all the water, so that plaintiff had not even enough for household use.

Alleging that defendants threatened to continue this practice, a restraining order was asked for, compelling all the defendants to desist from using the water, except as was their right; and the Court, upon investigation of the original

course of the water flow, and its subsequent diversion and use, granted a perpetual injunction accordingly, but allowing the intruding defendants water for household use and watering stock. A new trial was moved by defendants, on various grounds, which was denied, and this appeal taken.

Waters and Swing, attorneys for plaintiffs and respondents.

Volney E. Howard and H. M. Willis, attorneys for defendants and appellants. OPINION.

MCKINSTRY, J.

There can be no doubt that the appellant, Crafts, is bound by the decree in Folks et als. vs. Crafts, so far as is concerned any claim on his part to the use of waters, by reason of his one-sixth interest in the Carpenter ranch. Even if the same subject matter were involved in the prior action of Crafts vs. McCoy the judgment in the prior action was not pleaded as a former determination in Folks vs. Crafts. But the issue was different. In Folks vs. Crafts the question was, what were the rights of the parties with respect to the use of certain waters when that action was commenced. Crafts vs. McCoy had been finally adjudged before Crafts acquired his one-sixth interest in the Carpenter ranch; and Crafts acquired the one-sixth interest prior to the commencement of the action of Folks vs. Crafts. All the rights of Crafts in the waters of the stream, as they existed when the suit of Folks vs. Crafts was brought, were necessarily settled by the decree in that case, since they were, or could have been there asserted..

• Appellant Crafts claims the right to continue the use of water on the "See " and "Criswell" places, by reason of adverse use for more than five years. It. is enough to say that the use of water upon those places-as the case clearly shows- was not peaceable, as that term is applied in connection with the subject we are considering, but was disputed, and not infrequently interrupted by plaintiffs and their grantors. "The use," says Wood in his Law of Nuisances, "must also be open, and as of right, and also peaceable; for if there is any act done by the other owners that operates as an interruption, however slight, it prevents the acquisition of the right by such use." (9 Conn., 162; 1 M. and W., 100; 3 Nev. and Perry, 257.)

Appellant Crafts further claims that he is entitled to the use of water not allowed him by the decree of the District Court, as riparian proprietor, by virtue of his ownership of the "See" and "Criswell" tracts. His right to these two places was deraigned at the trial from McDonald and Meacham, who had acquired title thereto as pre-empticners and purchasers from the United States. The purchase from the Government of the " See" place was consummated Dec. 3, 1870, that of the "Criswell" tract on the twenty-seventh day of February, 1873. The Conrt below found that the zanja-the waters of which are in dispute—was an artificial conduit through which the waters of the natural stream had been appropriated by plaintiffs and their grantors long prior to the purchase from the Government of the "See" and Criswell" tracts. The rights thus initiated and maintained by appropriation were confirmed by the Act of Congress "granting the right of way to ditch and canal owners over the public lands." That Act, passed July 26, 1866, conferred rights to waters appropriated for agricultural purposes. (Basey vs. Gallagher, 20 Wallace, 670.) It appears from the findings, that prior to the grant to the Lugos, of the

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rancho, which includes within its boundaries both the lands owned by the appellants, Leffingwell and Byrne, and those at Cottoowcod Row, owned by plaintiffs, the Mission authorities (who were agents of the Spanish and Mexican Covernments) had conducted the waters from the natural stream 10 Cottonwood Row, and there employed them for purposes of irrigation; that this appropriation and use was continued by the Lugos until their conveyance to grantors of plaintiffs of lands at Cottonwood Row, and by plaintiffs or their grantors until after the purchase of the Lugos, title by appellants, Leffingwell and Byrne.

Doubtless while the title of the whole rancho remained in the Lugos they 'might have diverted the waters of the zanja anywhere within the boundaries of the rancho. But the Lugos, having continued the exclusive appropriation to the lands at Cottonwood Row until the sale and conveyance of such lands, the question arises, did not the exclusive use of the waters attach as appurtenant to the lands at Cottonwood Row, in such sense, that neither the Lugos nor their grantees of lands on the zanja above, could divert the waters or deprive the owners of Cottonwood Row of their accustomed use.

In Lampman vs. Milks, (21 N. Y., 505,) Denio, J., said: "The rule of the common law on this subject is well settled. The principle is, that where the owner of two tenements sells one of them, or the owner of an entire estate sells a portion of it, the purchaser takes the tenement or portion sold, with all the benefits and burdens that appear at the time of sale to belong to it, as between it and the property which the vendor retains. No ease

ment exists so long as the unity of possession remains, because the owner of the whole may at any time rearrange the quality of the several servitudes; but upon severance by the sale of a part, the right of the owner to redistribute ceases, and easements or servitudes are created corresponding to the benefits or burdens existing at the time of sale.

It has been said that the rule as adopted in Nicholas vs. Chamberlain is recog. nized fully by the Courts of this country. (Wood's Law of Nuisances, sec. 415.) In that case (Cro. Jac., 121) it was laid down: "If one erects a house and builds a conduit thereto in another part of his lands, and conveys water by pipes to the house, and afterward sells the house with the appurtenances, excepting the land, the conduit and pipes pass with the house, because it is nec. essary, et quasi, appendant thereto."

When the owner of lands divides his property into two parts, granting away one of them, he is taken by implication to include in his grant all such easements in the remaining part as are necessary for the reasonable enjoyment of the part which he grants, in the form which it assumes at the time he transfers it. "If the grantor has already treated this portion as a separate prop. erty, the mode in which he enjoyed it or suffered it to be enjoyed, affords a very proper indication of what rights over his remaining land he intends to pass as accessory to it." (Phear on Waters, 73.)

There can be litttle doubt that through the entire possession of the Lugos the waters were conducted through the zanja to Cottonwood Row, and for purposes of irrigation. The use of these waters, to the extent, at least, to which