from the District Court of Appeal to the Supreme Court for hearing and determination after judgment in the said District Court of Appeal, is denied; a majority of the justices of this court being of the opinion that the constitutional provision with reference to the transfer of cases from the District Court of Appeal to the Supreme Court has no application in matters of habeas corpus.

1 Cal. 722)

HOYT v. HART. (Sac. 1,374, 1,454.) (Supreme Court of California. Sept. 24, 1906. Rehearing Denied Oct. 23, 1906.)

1. WATERS AND WATER COURSES-IRRIGATION -ACTIONS FOR INJURIES JUDGMENT.

In a suit to restrain defendant from interfering with the waters of an irrigation ditch, and for damages for trespass on plaintiff's rights, it was found that the water to which plaintiff was entitled was only one-eighth of that flowing in the ditch, which one-eighth at no time exceeded 75 inches. She was awarded by the decree a right to carry her share of the water over defendant's land through the waterways in which she claimed a right to carry it. The decree permitted defendant to use the waterways without infringing plaintiff's rights, and he was restrained from reducing the same so that their carrying capacity would be less than 75 inches or from diminishing the supply of water to which plaintiff was entitled. Held, that there was no incensistency between the portion of the decree declaring that plaintiff had an easement in the waterways and the portion which granted to defendant the right to use them jointly with ulaintiff the easement being a right to use the land of defendant for conducting the water to her own land.

2. SAME.

In a suit to restrain defendant from interfering with the waters in an irrigation ditch, it was found that the water to which plaintiff vas entitled was only one-eighth of that flowing in the ditch, which one-eighth at no time. exceeded 75 inches. The decree awarded plaintiff a right to carry her share of the water over defendant's land through the waterways in which she claimed a right to carry it and gave defendant a right to use them subject to the proviso that he should not interfere with the low to which plaintiff was entitled. Held that. if the waterways were reduced to a capacity of 5 inches, defendant would be entitled to use them only when plaintiff's one-eighth share of the waters of the ditch amounted to less than 75 inches, and then only to such extent as would not prevent plaintiff from receiving her full one-eighth share.

3. TRIAL-ADOPTION BY COURT OF VERDICT OF JURY EFFECT.

Where, in a suit to restrain a defendant from interfering with the waters of an irrigation ditch, and for damages for past interference, the issue raised by the allegation in the complaint and the denial in the answer that defendant trespassed on plaintiff's easement to his damage was determined by the verdict of the jury. and the court adopted the verdict. there was no necessity for any further finding by the court.

4. SAME-FINDING OF TRIAL COURT-DETEKMINATION OF ISSUES SUFFICIENCY.

Where, in a suit to restrain defendant from interfering with the waters in an irrigation ditch, plaintiff in his answer to the cross-complaint alleged a former judgment in his favor which declared plaintiff's title to an easement, consisting of the right to use waterways over defendant's land to take water from the ditch without determining whether defendant had a

right to use the waterways, and the court awarded to plaintiff the easement claimed, the failure to find that the former judgment was in force did not affect plaintiff's rights.

5. JUDGMENT PLEADING-CONSTRUCTION.

An allegation in a plea of a former judgment that it had been adjudged that plaintiff was the owner of a waterway across the lands of defendant, for the purpose of conveying water from an irrigation ditch, means no more than that plaintiff owned an easement to carry waters over defendant's land through a waterway. 6. COSTS-PERSONS ENTITLED TO.

A suit for damages for trespass to an easement to use a waterway over defendant's land to carry waters from an irrigation ditch, and for an injunction to restrain defendant from interfering with the waterway involves title to real estate within Code Civ. Proc. § 1022, subd. 5, declaring that costs are. allowed to plaintiff on a judgment in his favor in an action involving title to real estate, and plaintiff, on obtaining a judgment, is entitled to costs.

[Ed. Note. For cases in point, see Cent. Dig. vol. 13. Costs, § 138.]

7. SAME.

Code Civ. Proc. § 1022, subd. 5, declares that costs are allowed to plaintiff on a judg ment in his favor in an action involving the title or possession of real estate. Plaintiff brought suit to restrain defendant from interfering with his easement to carry water from an irrigation ditch in waterways through defendant's land. Defendant filed a cross-complaint, asking the court to divide the waters of The ditch according to the rights of the parties. The decree determined the rights of the parties. Held, that it was not error to divide the costs between the parties where it did not appear what portion of the costs was properly attributable to the trial of the original action and what portion to the trial of the cross-action.

Ed. Note. For cases in point, see Cent. Dig. vol. 13. Costs, §§ 272, 274.] .

8. APPEAL -- ERRORS IN JUDGMENT — CORREC

TION.

The error in a judgment in a suit asking for an injunction, and for damages which omits to give plaintiff judgment for $1 damages awarded by the jury is too trifling to require a modification.

Department 1. Appeal from Superior Court. Siskiyou County: J. S. Beard, Judge.

Action by Elizabeth Hoyt against E. C. Hart. From a judgment granting insufficient relief, and from an order denying a motion for a new trial, plaintiff appeals. Affirmed.

R. S. Taylor, for appellant. Gillis & Tapscott and James F. Farraher, for respondent.

SLOSS, J. The plaintiff prosecutes two separate appeals: one from the judgment, and one from an order denying a motion for new trial. Both may be considered in a single opinion.

The plaintiff and the defendant are owners of adjoining tracts of agricultural land in Siskiyou county, the plaintiff's holding lying to the west of the defendant's. On the easterly side of the defendant's land there runs an irrigating ditch, variously designated in the record as the "Miller, Hoyt, and Casedy Ditch" and as the "Burgess Ditch," and each of the parties claims an interest in a portion of the waters flowing through it. The complaint alleges that the plaintiff is the owner

of 200 inches, measured under a four-inch pressure, of the waters flowing through such ditch, which is stated to have a capacity of 800 inches. It is alleged that for 40 years the plaintiff and her predecessors have conducted their share of the waters of the Burgess ditch over the lands of the defendant through a certain ditch and waterway, the course of which is described, and that they have so conducted such waters continuously, adversely, and under a claim of right. The complaint further sets forth that in May and June, 1903, while the plaintiff was on deTendant's land, cleaning out the ditches and waterways connecting with her land, the defendant drove off her workmen, and filled up the ditches, to her damage in the sum of $2,000. The prayer is for judgment for the damage sustained, and for an injunction restraining the defendant from preventing plaintiff from entering upon his lands and cleaning out the ditches across the same, and restraining the defendant from filling up said ditches or interfering with the flow of plaintiff's waters therein. A temporary injunction, restraining these acts was granted. The answer denies that the Burgess ditch is capable of carrying more than 600 inches of water, denies that plaintiff is the owner of 200 inches of the water carried in it, and alleges that the Burgess ditch does not carry a steady and uniform flow of water, and that its owners are entitled, not to a definite or fixed amount measured in inches, but only to a certain proportion of the water flowing in said ditch, the plaintiff's share being oneeighth of such water. It is alleged that the defendant owns five-eighths of the water flowing through the Burgess ditch, and that he has an interest in the other two-eighths, subject to the right of C. Henry Haight to first use them for irrigating his lands. The answer denies that plaintiff has received her share of the water through any defined channel or water course across his lands, but asserts that he, the defendant, has used certain ditches to spread water from the Burgess ditch over his own property, and that plaintiff's water has come to her partly througa these ditches, and partly by overflow on the surface of the soil. The defendant aileges, further, that plaintiff had come upon his land and torn out of his ditches a number of dams and gates, and had dug new ditches, deepened the old ones and so prevented defendant from using his irrigating system. The plaintiff's allegation of damage is denied. In a crosscomplaint the defendant sets up substantially the same matters pleaded in the answer, asks that the court divide the waters of the Burgess ditch according to the rights of the parties, that plaintiff be required to conduct her waters by a route to be directed by the court, outside of defendant's irrigated premises, and that plaintiff be enjoined from interfering with defendant's dams or ditches. Plaintiff's answer to the cross-complaint asserts that the Burgess ditch has a capacity

of 1,000 inches, denies the commission of the wrongful acts charged against her in the cross-complaint, and sets up a prior judg ment by which it was determined that the plaintiff was the owner of a ditch and waterway across the lands of defendant for the purpose of conveying her waters through said lands of defendant. This judgment is asserted as an estoppel precluding defendant from asserting that plaintiff is not the owner of said ditch and waterway. By order of the court, C. Henry Haight was brought in as a party, and filed a pleading asserting a claim to two-eighths of the water of the Burgess ditch. As his rights are not here in dispute, they need not be further considered. The cause was tried before a jury, which returned a general verdict in favor of the plaintiff, assessing her damages at $1. and in addition, specially found as follows: "(1) We find that Mrs. Hoyt owns oneeighth of the Miller, Hoyt, and Casedy ditch. (2) The said one-eighth to be delivered over the premises of E. C. Hart and through what is known as the 'B ditch.' (3) Water to be measured at the point taken from the Miller, Hoyt, and Casedy ditch between one foot and 100 feet north of where the back ditch leaves the Miller, Hoyt, and Casedy ditch. (4) Measuring box to be placed in the west end of the B ditch between one foot and 100 feet from the fence or Hoyt line. (5) Mrs. Hoyt to pay one-eighth of the expense for keeping up the said waterway and not to interfere in any way with the irrigating water system of the defendant." The court made its findings of fact, in which it set forth the foregoing verdict and special findings of the jury, and, as it recites, "aftter fully considering the verdict and findings of the jury," it found that the full capacity of the Burgess ditch is not more than 600 inches, that the water actually carried in it during the irrigating season varies from time to time, at times getting as low as from 40 to 60 inches; that the plaintiff and her predecessors owned an undivided one-eighth of these waters, and the defendant Hart fiveeighths, Haight having a first right to the remaining two-eighths, that plaintiff's proportion at no time exceeds 75 inches; that plaintiff and her predecessors have for many years conducted their one-eighth part of the waters of the Burgess ditch over defendant's land through ditches and waterways in a described course, that since the commencement of the action the plaintiff has materially enlarged and deepened one of the ditches running through defendant's land, and has torn out defendant's dams and turnouts, that said ditch has been so enlarged that stock cannot cross it safely, and wagons or farming machinery cannot be driven over it, that these operations have prevented defendant from using for irrigation his share of the waters. It is found that these ditches through defendant's land were constructed by him and his predecessors, and that for 40 years said

ditches have been used for irrigating the Hart premises. Following these findings, there was a decree or judgment, which after setting forth the rights of the parties to the waters of the Burgess ditch, and the plaintiff's easement over the premises of the defendant, Hart, as described in the findings, declares that said easement of plaintiff is held by her in common with lefendant, Hart, "and he has the right to conduct his waters through said ditches, etc., jointly with plaintiff and to the extent hereinafter specified." The decree then provides for a division of the waters of the Burgess ditch by means of a dividing box, and enjoins the defendant Hart from damming or filling up the ditches in which plaintiff has an easement so as to reduce their carrying capacity to less than 75 inches, "or from in any way or manner interfering with or arresting or diminishing the flow of water therein to which the plaintiff, Elizabeth Hoyt, is at any time entitled to have and receive as her proportionate share of the waters of said Burgess ditch; Provided, however, that said defendant, Hart" shall be permitted to fill up said ditches so that they shall be as they were before plaintiff deepened them, and to use said ditches, in common with plaintiff for carrying his own waters "provided, however, that he at no time prevents the one-eighth of the waters of the said Burgess * * * litch from flowing down through said ditches." The plaintiff is by the decree enjoined from interfering with Hart's premises or his irrigating system except for the purpose of cleaning out and repairing the ditches and waterways in which she has an easement. The costs are evenly divided between the parties, and judgment is given to plaintiff for $23.60, the excess of her costs, as taxed, over one-half of the costs of both.

It has seemed necessary to make this somewhat extended statement of the pleadings, and the proceedings culminating in the decree, in order that the points made by the plaintiff on her appeals may be clearly set forth and discussed. The appellant's principal objection is directed against the provisions of the decree which declare her right to an easement across defendant's land. is claimed that the decree, in authorizing the defendant to use the ditches running over his land in common with the plaintiff, deprives the plaintiff of the fixed and definite easement claimed by her. But we fail to see that these provisions of the decree fall short in any degree of securing to the appellant her full rights. It having been found that the water to which she is entitled is only oneeighth of that flowing in the Burgess ditch, and that this one-eighth at no time exceeds 75 inches, she is awarded by the decree a right to carry her share of the water over the defendant's land through the ditches and waterways in which she has claimed a right to carry it. It is true that defendant is also permitted to use these waterways, but his

use can never, under the terms of the decree, infringe upon her rights. He is restrained from reducing these ditches so that their carrying capacity will be less than 75 inches, or from diminishing the flow of waters to which plaintiff is entitled, and his right to use the ditches is expressly made subject to the proviso that he at no time prevents plaintiff's one-eighth of the waters of the Burgess ditch from flowing through the connecting ditches. There is no inconsistency between the portion of the decree declaring that plaintiff has an easement in these ditches, and that portion which grants to defendant the right to use the ditches jointly with plaintiff for the purpose of carrying his waters. The casement is a right to use the lands of the defendant for conducting her waters to her lands. It can coexist with a right in the defendant or any one else to use the same waterways, so long as such use does not restrict or interfere with the right owned by the plaintiff. It would not be claimed that merely because A. has a right of way over B.'s land, B. cannot, under any circumstances, use the portion of his land affected by the easement in a manner which does not infringe upon the exercise of such easement. It is well settled, as a general proposition, that the owner of the servient estate, may use his property in any manner and for any purpose consistent with the enjoyment of the easement, "Thus in a case of a way the owner of the servient estate may use the land over which it passes in any manner which does not materially impair or unreasonably interfere with its use as a way. He may himself use it as a way * * * unless the rights of the owner of the easement are exclusive." 14 Cyc. 1208, and cases cited. In the case at bar there is no allegation that the plaintiff's right was exclusive. The court found, and the evidence fully supported the finding, that for 40 years the defendant and his grantors had used these ditches as a portion of the irrigating system of the Hart lands. This finding, which was within the issues, necessarily called for the adjudication that Hart might continue to use these ditches, provided that he so used them as not to interfere with plaintiff's right. It is suggested that as defendant is permitted to reduce the capacity of the ditches to 75 inches, and to use them in common with plaintiff, the plaintiff may be restricted to onehalf of the capacity of a ditch which, when full, is only large enough to accommodate the flow to which she is entitled, viz., 75 inches. In answer to this, it is sufficient to say that defendant's right to use the ditches is always subject to the proviso that he shall not interfere with the flow to which plaintiff is entitled. If the ditches be reduced to a capacity of 75 inches, defendant will be entitled to use them only when plaintiff's oneeighth share of the waters of the Burgess ditch amounts to less than 75 inches, and then only to such extent as will not prevent

plaintiff from receiving her full one-eighth share.

There is no force in the contention that the court failed to find upon material issues. The issue raised by the allegation (and denial) that defendant trespassed upon plaintiff's casement, to her damage, is determined by the verdict of the jury, which, from the findings and the judgment, appears to have been adopted and accepted by the court. Such adoption obviated the necessity of any further finding. Goldman v. Rogers, 85 Cal. 578, 24 Pac. 782; Morrison v. Stone, 103 Cal. 94, 37 Pac. 142. There is no finding upon the issue tendered by the answer to the cross-complaint, alleging a former judgment in favor of plaintiff, but the absence of such finding is immaterial. Plaintiff relied upon this judgment merely for the purpose of establishing her right to an easement for conveying her water across defendant's land. She has been awarded the easement claimed, and would be entitled to no greater rights if the court had expressly found that such casement had been established in her favor by a prior judgment. As we have seen. plaintiff's ownership of an easement over defendant's land is in no degree inconsistent with the use, by defendant, of the servient tenement, so long as such use is subordinate to the easement and does not restrict or limit its exercise. The former judgment declaring plaintiff's title to such easement did not purport to determine whether or not defendant had a right to use the ditches. It merely determined that plaintiff had a certain right in them. This right is secured to her by the present decree. A finding that the former judgment was in force would not have entitled her to any greater relief than she received. The absence of such finding cannot therefore affect the judgment now complained of. Gould v. Adams, 108 Cal. 365, 41 Pac. 408; Blochman v. Spreckels, 135 Cal. 662, 67 Pac. 1061, 57 L. R. A. 213. In plaintiff's plea of former judgment the allegation is that it had been adjudicated that she was the owner of a "ditch and waterway" across the lands of defendant for the purpose of conveying waters. In the foregoing discussion we have treated this allegation as meaning no more than that she owned an ease ment or right to carry waters over his lands through a ditch or waterway, and such we think is the proper construction of the language quoted. For reasons above stated, it is of no importance that the court did not find that defendant threatened to continue to commit the acts complained of. The purpose of the allegation to this effect was to entitle plaintiff to an injunction restraining such acts, and this relief was granted her. The appellant contends that the court erred in dividing the costs between the parties. The general rule is undoubtedly that in suits in equity the costs may be apportioned according to the discretion of the court. But the rule has been modified in this state by

*

statutory provisions regulating the allowance of costs. Section 1022 of the Code of Civil Procedure declares that "costs are allowed, of course, to the plaintiff, upon a judgment in his favor, in the following cases: * (5) In an action which involves the title or possession of real estate. ***" We think this action, in which the main issue was whether or not the plaintiff was the owner of an easement over defendant's land involved the "title or possession to real estate" within the meaning of this section. An easement is real estate; and its possession or title is involved in an action seeking damages for past trespasses and a restraint against future trespasses upon such easement, where the defendant puts in issue the existence of the easement. Many cases holding that such actions come within the terms of similar statutes are cited in 11 Cyc. 49, 50, and the same result must follow from the former adjudications of this court. Schmidt v. Klotz, 130 Cal. 224. 62 Pac. 470; Sierra Union, etc., Co. v. Wolff, 144 Cal. 430, 77 Pac. 1038; Gibson v. Hammang, 145 Cal. 454, 78 Pac. 953. See, also, Kelly v. Central Pac. R. R. Co.. 74 Cal. 565, 16 Pac. 386. 5 Am. St. Rep. 470. And, if the action involves the title or possession of real estate, it is immaterial what the form of action may be, or whether the relief sought is, in whole or in part, equitable. If equitable. If the plaintiff recovers, even though only as to a portion of the title or possession involved, the right to costs follows of course under the terms of the statute. Sierra Co. v. Wolff, supra; Gibson v. IIammang, supra. So far, therefore, as concerned the trial of the issues arising on the complaint and the answer thereto, the plaintiff, having prevailed, was entitled to costs. But there was also a cross-complaint, involving, in like manner, the title or possession of real estate. As to this, the defendant was plaintiff, and he succeeded in establishing. in part, the right claimed, and was granted relief. If the questions raised by the crosscomplaint and the answer thereto had been litigated in a separate action, the defendant herein, who would have been plaintiff in such action, would have been entitled to his costs. We think his right thereto is not affected by the fact that he prosecuted his claim as plaintiff in a cross-complaint. On the record before us, it does not appear what portion of the total costs were properly attributable to the trial of the original action, and what portion to the trial of the cross-action. far as we can see, the division of the costs made by the court may have resulted in giving to each of the parties the exact amount of costs which he or she had the right to recover. Error will never be presumed, but must be made to affirmatively appear, and this court cannot say that any right of the plaintiff was injuriously affected by the apportionment of costs directed by the judgment.

The decree, probably through inadvertence,

omits to give plaintiff judgment for the $1 damages awarded her by the verdict of the jury. This oversight we regard as too trifling to require even a modification of the judgment.

The judgment and order appealed from are affirmed.

We concur: ANGELLOTTI, J.; SHAW, J.

(149 Cal. 712)

In re CAMPBELL'S ESTATE. (L. A. 1,791.) CAMPBELL v. CAMPBELL et al. (Supreme Court of California. Sept. 21, 1906.) 1. WILLS--CREATION OF TRUST.

A will authorized the executrix to sell any property of the estate at public or private sale. with or without notice and without any order of court, but directed that different pieces of property should be held for certain prices, until the testator's daughter should arrive at the age of 21 years, or, in case of her death before that time, until she would have arrived at that age if she survived, unless said property were sold before that time at the prices stated. It further provided that when said daughter arrived at the age of 21 years, or would arrive at such age, then all of such properties that might be undisposed of at that time should be disposed of by the executrix for the best price obtainable, and the proceeds divided as specially directed. It further provided for the division of the proceeds of the property. Held, that the power to sell was a naked power. not coupled with an interest. and therefore no trust was created. 2. PERPETUITIES - POWER OF ALIENATION SUSPENSION.

A will, authorizing the executrix to sell any of the property of the estate at public or private sale, with or without notice, and without any order from the court, but directing that different pieces of property should be held for certain prices until testator's daughter should arrive at the age of 21 years, or, in case of her death before that time, until she would have arrived at the age of 21 years if she had survived, merely enlarged the legal power of the executrix so that she could sell without previous authority, the condition being a limitation solely upon the express power of sale given by the will, and it did not apply to or restrict the statutory powers of the executrix to sell under an order of court whenever it should be necessary, and it was not in violation of Civ. Code. §§ 715, 716, prohibiting the suspension of the absolute power of alienation of property for a period longer than the lives of persons in being at the testator's death.

[Ed. Note.-For cases in point. see Cent. Dig. vol. 39. Perpetuities, $ 45.]

3. SAME.

A will, authorizing the executrix to sell any of the property at public or private sale, with or without notice, and without any order of the court. and directing that the property should be held for a certain price until the testator's daughter should arrive at the age of 21 years, or, in case of her death, before that time, until she would have arrived at that age, unless the property was sold before that time at prices stated, did not suspend or affect the power of the legatees or beneficiaries to alienate their respective interests, within Civ. Code. $$ 715, 716, prohibiting the suspension of the absolute power of alienation of property for a period longer than the lives of persons in being at the testator's death.

[Ed. Note.--For cases in point, see Cent. Dig. vol. 39, Perpetuities, § 45.]

4. SAME. Where no trust is created and the legal effect of a will is to vest the present title to the entire fee in persons ascertained and in being. although diferent interests or rights therein are given to each of such persons, the interest of each person can be conveyed immediately.

[Ed. Note. For cases in point, see Cent. Dig. vol. 89, Perpetuities, § 45.]

5. SAME.

Civ. Code. §§ 715 and 716. prohibiting the suspension of the absolute power of alienation of property for a period longer than the lives of persons in being, relate to suspension of power by the terms of the instrument by which the estate is created, and the fact that some of the interested persons are minors, incapable of executing a valid conveyance, except by the intervention of the court, does not bring the case within the prohibition.

[Ed. Note.--For cases in point. see Cent. Dig. vol. 39. Perpetuities, § 45.]

6. WILLS INTERESTS CREATED - VESTED ESTATES.

A will authorized the executrix to sell any of the property of the estate without any order from the court, but directed that it should be held for certain prices until the testator's daughter should arrive at the age of 21 years, or, in case of her death before that time, until she would have arrived at that age if she had survived. It further provided that the money received after the testator's death from each of the groups of properties mentioned, either from payments made after his death upon sales made. by him before death or from sales made after his death should "be divided and paid over as follows:" Of the first $600,000, four sixths 10 three of his children, one-sixth to another son, and one sixth to his nephew of the next $200,000, one-half to certain nephews and nieces, and one-half to a university: the next $100,000 was bequeathed to the testator's wife, and the remainder was given to his wife in trust for their three children. Held, that the interests created by the will were vested estates.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 49, Wills, §§ 1464, 1470, 1471.]

7. JUDGMENTS FOREIGN JUDGMENTS - CONSTRUCTION OF WILL-CONCLUSIVENESS.

A judgment of a court of another state in ancillary administration proceedings, distributing the proceeds of property in that state, is of no binding force as a general judicial construction of the will to be applied and enforced in this state in the administration of assets within the jurisdiction of its courts.

Department 1. Appeal from Superior Court, Riverside County: J. S. Noyes, Judge.

Action by Charles Rufus Campbell against Eleanor Campbell, and others. From the judgment rendered, certain defendants appeal. Reversed.

Hayden & Hayden, Crane & Woodburn Bros., and Miguel Estudillo, for appellants. A. H. Stuttsman, Collier & Carnahan, and Purrington & Adair, for respondent.

SHAW, J. This is a proceeding under section 1664 of the Code of Civil Procedure to obtain a decree declaring the succession to the estate of Allen G. Campbell, deceased. The court below held that certain provisions of the will of the deceased, purporting to dispose of a large part of the estate, operated to suspend the absolute power of alienation of the property for a period longer than the lives of persons in being at his death, that