ing the water from the main channel so as to prevent it from flowing down to the extent of the capacity of their ditch. But on appeal the judgment was reversed, and this court, per MURRAY, C. J., said:

"The plaintiffs being the prior locators, it would follow that any interference with the waters of Dutch gulch would be an infraction of their rights. But the appropriation of the waters did not give them the exclusive use of the bed of the stream. We see no reason why it might not be used by others as a channel for conducting water, so long as it did not interfere with their rights. If the defendants were diverting the natural water of the stream, as well as that brought into it by themselves, then the plaintiff would have a just cause of complaint."

In the case at the bar, the channel of the south fork of Jackson creek is used as a connecting link between the Amador county canal and the ditch of the defendants. The water from the canal is emptied into the fork with no intention of abandoning its use, but for the sole purpose of supplying the ditch. The principal difference between this case adn that of Hoffman v. Stone, is the mingling of the water introduced by the defendants with the waters of the creek. In that case the channel of the stream was dry in certain seasons of the year, and at the time the suit was brought there was no natural water flowing in it. But it does not appear that this circumstance had any controlling influence upon the decision. The point settled in that case is this: that the prior right to the use of the natural water of a stream does not entitle the owner of such a right to the exclusive use of the channel. So long as his right is not interfered with, there is no reason why the bed of the stream may not be used by others as a channel for conducting water. If the plaintiff's in the present case receive their full supply, as previous to the introduction of water by the defendants, they have no cause of complaint.

It does not necessarily follow that the water introduced by the defendants became subject to the use of the plaintiffs, because its identity was lost by being mingled with the water naturally flowing in the creek. The rights of the parties, after such mingling, are not unlike the rights of the owners

of goods of equal value after their mixture-both are enti tled to take their given quantity. Where there is a confusion of goods willfully made by one owner, without the consent of the other, so that it becomes impossible to distinguish what belongs to each, the common law gives the entire property to the injured party. "But this rule," says Kent, is "carried no further than necessity requires; and if the goods can be easily distinguished and separated, as articles of furniture, for instance, then no change of property takes place. So, if the corn or flour mixed together were of equal value, then the injured party takes his given quantity, and not the whole." N. Y. 365; Lupton v. White, 15 Ves. 442.

2

The

The plaintiffs rely, with apparent confidence, upon the case of Eddy v. Simpson, 3 Cal. 249. In that case the plaintiffs were the prior appropriators of the water of Shady creek, having diverted the same by a dam across the stream. defendants, by like means, obtained the water of Bloody run and Grizzly cañon, which they brought to a place known as Cherokee corral, where, after its use, it passed from their possession, and found its way, by natural channels and the natural level of the country, to Shady creek, at a point above the dam of the plaintiff's. And when the defendants undertook to retake from Shady creek a quantity of water equal to that which thus found its way into the channel, the court held their rights to the water were gone. "When the water of Grizzly cañon and Bloody run," said the court, "left the possession of the defendants at Cherokee corral, all right to and interest in that water was lost by the defendants. It might be made the property of whomsoever chose to possess it. Without the agency of the defendants, it found its way into. Shady creek, joining the waters there in the possession of the plaintiffs, and became a part of the body of water used and possessed by them."

It is very evident that the court considered the fact that the water had passed from the possession of the defendants and found its way to Shady creek without their agency, as material circumstances of the case; in other words, it regarded the water as having been abandoned. This is the view taken by Mr. Chief Justice MURRAY, when he notices the objection that Hoffman v. Stone was within the rule of that case; for

the reason he assigns, as an answer to the objection, is the finding of the jury that the water was not abandoned by the defendants, and left to find its way by natural channels into Dutch gulch, but was turned in by the defendants, making the gulch a connecting link of their ditch.

There may be some difficulty, in cases like the present, in determining with exactness the quantity of water which parties are entitled to divert. Similar difficulty exists in the case of a mixture of wheat and corn-the quantity to be taken by each owner must be a matter of evidence. The courts do not, however, refuse the consideration of such subjects, because of the complicated and embarrassing character of the questions to which they give rise.

If exact justice can not be obtained, an approximation to it must be sought, care being taken that no injury is done to the innocent party. The burden of proof rests with the party causing the mixture. He must show clearly to what portion he is entitled. He can claim only such portion as is established by decisive proof. The enforcement of his right must leave the opposite party in the use of the full quantity to which he was originally entitled.

Cases involving questions of analogous character and equal difficulty are of frequent occurrence. The illustration given by the defendants' counsel is in point. A constructs a ditch, and appropriates a portion of the water of some stream for mining purposes; B subsequently constructs a ditch for a similar purpose, tapping the stream. A then enlarges his ditch, destroying the landmarks of its original capacity. A dispute then arises between A and B, as to whether A is not diverting more water through his enlarged ditch than he is entitled to by virtue of his first appropriation. Here the quantity of water to which A and B are respectively entitled becomes difficult of accurate adjustment; and if, instead of two, there be a greater number of ditches taking water from the same stream, questions respecting the conflicting rights of the parties become exceedingly complicated and embarrassing. The courts do not, however, as we have observed, refuse to entertain such questions, but endeavor to relieve them of their complication and embarrassment, and to mete out justice to all parties: Priest v. Union Canal Company, 6 Cal. 170,

and White v. Todd's Valley Water Company, 8 Cal. 443. In Embrey v. Owen, 4 Eng. L. & E. 470, Baron Alderson refers to a case in point. "There was a case," says the Baron, "of Dakin v. Cornish, tried before me at Leeds, in 1845, where water was taken from the river Ayr to work a steam engine. There was an artificial course from the river to a reservoir in the yard of a mill: the water was there mixed with other water obtained from the earth; the whole was then used for the steam engine; what remained was transferred into another tube and carried back to the river. And the question was whether this was an injury to some other mills lower down on the stream. We took much care about the case, and I left it to the jury to say if the same quantity of water continued to run in the river as if none of its water had ever entered the premises of the defendant, and if so, he was entitled to their verdict."

The first appropriator of the water of the stream passing through the public lands in this State has the right to insist that the water shall be subject to his use and enjoyment to the extent of his original appropriation, and that its quality shall not be impaired so as to defeat the purpose of its appropriation. To this extent his rights go, and no further. In subordination to these rights, subsequent appropriators may make such use of the channel of the stream as they think proper, and they may mingle with its waters other waters, and divert an equal quantity, as often as they choose. Whilst resting in the perfect enjoyment of their original rights, the first appropriators have no cause of complaint.

It follows that the court below erred in sustaining the demurrer to the new matter set up in the answer, and the judgment rendered thereon must be reversed and the cause remanded for further proceedings. Ordered accordingly.

Reversed.

ELLISON V. THE JACKSON WATER CO. ET AL.

(12 California, 542. Supreme Court, 1859.)

1 Ratification defined. The term "ratified," when used in reference to a contract, is applicable only to contracts made by a party acting or assuming to act for another; it implies the relation of principal and agent. Statute of Frauds-Promise to pay the debt of another. E. contracted to build an extension to a ditch upon which a mortgage existed. After work commenced, the holder of the mortgage instituted a foreclosure suit, whereupon E. refused to complete the extension. The holder of the mortgage then orally promised E. that he should be paid out of the receipts for the sale of water by the receiver, F. having originally agreed to be paid out of the proceeds of sales. Under this promise, E. completed the work: Held, that the contract was within the Statute of Frauds, as a promise to pay the debt of another.

Mechanics' lien-Supplementary statute falls with repeal of original act. The act of 1850 gave a mechanic's lien only upon buildings and wharves. The act of 1853 extended the act of 1850 so as to include ditches, etc. The act of 1855 repealed the act of 1850: Held, the repeal carried with it the supplementary act of 1853, which extended the provisions of the original act. Without the original act, there was no mode of enforcing the supplementary act. The latter was so dependent upon the former as to become utterly inoperative upon the repeal.

It is essential to the validity of such contract that it, or some note or memorandum thereof be in writing; that it express a consideration and be subscribed by the party to be charged; and the consideration of the original contract did not attach to the promise made to a third party. Ditch, not a building or superstructure. A ditch is not a building, and in no sense can be denominated a superstructure under the Mechanics' Lien Law.

Flumes are parcel of the ditch. Flumes constructed at different points on the line of a ditch are mere connecting links over ravines and gulches, and do not change the general character of the work as an excavation; the whole must be regarded as a ditch.

Equity liens limited to vendor's liens.

Equity raises no lien with respect to real estate or work upon real estate, except the lien of vendor for purchase money.

Appeal from the Fifth District, County of Amador.

This was an action brought to recover a judgment against the defendants in the sum of $48,154.14 for services rendered

'Approved, Horn v. Jones, 28 Cal. 203.