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latter portion of section 3489, that the legislature contemplated the reorganization and consolidation of districts which had not been legally organized, for it is provided that such reorganization shall not be so construed as to validate such original organization. "Nor shall any indebtedness or any act of said districts, or the officers thereof, prior to the act of reorganization and consolidation, be legalized by this act." If valid districts could not be created by reorganizing those which were invalid, clearly there could be no reason in providing that such reorganization should not validate the original districts. The organization of a void corporation, or, to be more precise, an attempt to organize a corporation which utterly fails, cannot give a legal status to anything.

It appears as though the law-makers contemplated cases in which valid corporations might be created over a district in which irregular and invalid districts had existed, and, lest such reorganization should be taken as evidence of approval of the acts and indebtedness of such pre-existing districts, inserted the language therein contained. It is as though the legislature had said: "You may reorganize and create valid corporations for municipal purposes by uniting two or more corporations irregularly organized, but in so doing you cannot legalize the original bodies, and this law, under which you are permitted so to do, shall not legalize any act or indebtedness of the original districts performed or incurred before you reorganize." In saying the previous acts should not be legalized, we think the legislature intended the converse of the proposition should also be true, and that the subsequent acts of a corporation formed out of such material as we are considering should be valid. And we may ask, why not? A corporation de facto may legally do and perform every act and thing which the same entity could do or perform, were it a de jure corporation. As to all the world, except the paramount authority under which it acts and from which it receives its charter, it occupies the same position as though in all respects valid, and even as against the state, except in direct proceedings to arrest its usurpation of power, it is submitted, its acts are to be treated as efficacious. How, then, stands the case? Swamp-land districts No. 89 and No. 215 have never been the subject of a direct attack by the state to arrest their charters, or, what under our law is the same thing, to stay their exercise of corporate functions. As to those corporations this is a collateral attack. We think it should not prevail, and that swamp-land, levee, and reclamation districts de facto, acting as such in good faith and under an attempted compliance with law, may, under section 3489 of the Political Code, be united, consolidated, and reorganized, so as to form a new corporation in all respects valid, and that proceedings in the nature of quo warranto against such new corporation cannot be extended to an inquiry and determination as to the regularity of the several steps by which such original swamp-land, levee, and reclamation districts were organized.

It was further objected, at the trial, to the introduction of the petition for the organization of reclamation district No. 407 "that it shows it was signed by the Pacific Mutual Life Insurance Company, a corporation, and there is no proof that the corporation is authorized to hold real estate." It is said by Angell & Ames on Corporations, at section 110, that, "both by the laws of England and the United States, there are several powers and capacities which tacitly, and without any express provision, are considered inseparable from every corporation. Kyd enumerates five of these as necessary and inseparably belonging to every corporation." In enumerating them, the third in number is the right or power "to purchase lands and hold them for the benefit of themselves and their successors." The The presumption is that the corporation in question had the right to purchase and hold the lands by it represented. If there was anything in its charter, or the business in which it was engaged, or in the law under which it was organized, in any manner abridging its right to hold land, it does not appear of record; hence we deem the objection untenable.

Upon the whole case, as presented, we are of the opinion the judgment and order appealed from should be affirmed.

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

BY THE COURT. For the reasons given in the foregoing opinion the judgment and order are affirmed.

(2 Cal. Unrep. 543)

EVANS v. Ross. (No. 9,188.)

Filed September 30, 1885

1. RIPARIAN RIGHTS-RESTRAINT OF DIVERSION OF WATER-JURISDICTION. Actions to restrain the diversion, obstruction, and use of waters of a stream, and for damages for the same, are suits in equity to abate nuisances.


In a suit in equity, the court may order a jury, though the party is not entitled thereto; but, in such case, the verdict of the jury on the issues submitted by the court is advisory only, and it may be adopted or rejected by the court. A general verdict is insufficient, and a refusal to instruct a jury in such cases to find a general verdict is not error.


Five years' adverse possession is sufficient to bar an action to enforce a water right.


Where each of two defendants made diversion of water for his own benefit, separately from, and without any collusion, arrangement, or understanding with, his co-defendant, and without any consent or joint action between them, a joint action to recover damages for such diversion is not maintainable against them.

In bank. Appeal from superior court, county of Lassen.

E. V. Spencer, for appellants.

J. D. Goodwin, for respondents.

THORNTON, J. This is an action to recover damages for the obstruction, diversion, and use of the water of a stream, and for an injunction restraining defendants from continuing such obstruction, diversion, and use. The court below, on the trial, submitted a number of special issues to a jury, which were answered by it. Before the jury retired, counsel for plaintiff demanded of the court that the jury be allowed to bring in a general verdict, in addition to the verdict on the special issues submitted. This the court refused, and plaintiff excepted.

The court did not err in refusing the demand of plaintiff. The case is one in equity. This was so held in Courtwright v. Bear River, etc., Min. Co., 30 Cal. 576, Yolo Co. v. Sacramento, 36 Cal. 193, and Learned v. Castle, 7 Pac. Rep. 34. In Yolo Co. v. Sacramento, the court used this language:

"But we do not consider that the abatement of a nuisance, and the recovery of damages therefor, are distinct causes of action in the sense of the rule invoked by the demurrer. The nuisance is the cause of action. The abatement and damages therefor are merely different kinds of relief to which the plaintiff may be entitled."

In the case under consideration, the prayer is for an injunction enjoining and prohibiting the defendants, etc., from in any way obstructing or diverting the waters of said creek, etc. The prayer is not in so many words for removing and abating a nuisance, but equivalent words are used. Under such a prayer, a mandatory injunction could be granted for abating the obstruction of the water by a removal of it. With this form of prayer we hold it to be an action for abating a nuisance; and that the diversion of a water-course is a nuisance was held in Tuolumne W. Co. v. Chapman, 8 Cal. 392. See, also, Parke v. Kilham, Id. 77. It is well settled that a party is not entitled to jury in an equity case. It is in the discretion of the court in such a case to call a jury. When a jury is called, the court directs proper issues to be framed and submitted to it. The verdict on these issues is only advisory to the court, and it may adopt the findings of the jury, or reject them and itself find the facts. Warring v. Freear, 64 Cal. 56. A general verdict is insufficient and should be disregarded. Brandt v. Wheaton, 52 Cal. 430.

By reason of what is said above, the court did not err in its ruling as to a general verdict. It also follows from what is said above that the court did not err in setting aside the verdict of the jury and finding the facts itself. Neither did it err in denying plaintiff's motion for judgment on the verdict. The findings sustain the judgment in favor of defendant Ross. The twenty-third finding is as follows:

"That since the year 1862, until the commencement of this action, defendant Ross has continuously and uninterruptedly, during the irrigating season of each year, so long as there was sufficient water in the creek, diverted and used the said water of said creek, to the extent of one hundred and forty-nine inches measured under a four-inch pressure, through the dams and ditches heretofore described, on the west side of said creek; that he has used the same

for irrigating his said lands as before described, claiming all the time the right to do so as against the whole world; that such diversions, use, and claim of right have been with the full knowledge of plaintiff and his grantors. I find, also, that Ross' use of water has been adverse and hostile to plaintiff, and an injury to plaintiff. I find further that plaintiff and his grantors have never allowed five days to elapse without protesting and objecting to the same.

That an action to enforce the right to water can be barred by five years' adverse possession we consider settled in this state by the cases of Union Water Co. v. Crary, 25 Cal. 509, and Davis v. Gale, 32 Cal. 35. In the case first cited from 25 Cal., the court used this language:

"The right of the first appropriator may be lost, in whole or in some limited portions, by the adverse possession of another. And when such person has had the continued, uninterrupted, and adverse enjoyment of the water-course, or of some certain portion of it, during the period limited by the statute of limitations for entry upon lands, the law will presume a grant of the right so held and enjoyed by him."

The finding above quoted shows a use and diversion of the water of the stream in controversy by defendant Ross, for irrigating his lands during the irrigating season, for more than five years before the commencement of the action, continuously and uninterruptedly during such season in said years, to the extent of 149 inches under a fourinch pressure, through the dams and ditches mentioned in the finding; that this use was made under a claim of right adverse and hostile to the plaintiff; that this use and diversion were made with the knowledge of the plaintiff, and were injurious to him. We think that this finding determines the defense of the statute of limitations in favor of defendant Ross to the extent of the 149 inches under a fourinch pressure above mentioned.

We find no error in the judgment against Ross. The same is true as to defendant Williams. The plaintiff was entitled to the injunction against Williams awarded by the judgment. But it is contended that, inasmuch as the court found that plaintiff was damaged by the acts of Williams to the extent of $750, he is entitled to judgment against Williams for that amount. In answer to this, we have to say it was pleaded by Williams that he was improperly joined as a defendant with Ross in this: that the use and diversion of the water made by him was made for his own benefit, separately from, and without any collusion, arrangement, or understanding between him and his co-defendant, and without any consent of, or joint action between, them. The court found that all the acts done by defendants (referring to the acts of use and diversion of water) were done while acting severally and not in concert or collusion. The damage caused by each defendant was several, and no action could be maintained against them jointly for it.

We find no error in the record, and the judgment is affirmed.

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MYRICK, J., (concurring.) I concur in the foregoing opinion (and in the judgment) in all respects, except where it is held that the diversion of water is a nuisance. On that point I express no opinion. That the case is one in equity I have no doubt.

Ross, J. I concur in the judgment.

(67 Cal. 577)

LOWER KINGS R. W. D. Co. v. KINGS R. & F. C. Co. (No. 9,765.) Filed September 29, 1885.


The allowance of amendments to pleadings is generally in the discretion of the trial court, but the court is responsible for an abuse of discretion. Under the circumstances of this case, and as the attorney for plaintiff had, without objection, received the amended answer as filed, and made no protest thereto until the trial, held, that the discretion of the court was abused in refusing to allow defendant to amend its answer.

Department 2. Appeal from superior court, county of Tulare. H. J. Dixon and David S. Terry, for appellant.

Brown & Daggett and A. Jacobs, for respondent.

MYRICK, J. This is an action to recover damages for an alleged improper diversion of water from Kings river, and for an injunction restraining further diversion. The complaint was filed April 23, 1880, and on the sixth of September an answer was filed. In October of the same year an appeal was taken from an order refusing to change the place of trial, and the appeal was in this court until May 22, 1882, when the remittitur went down. On the fourth of September, 1882, without previous notice to the defendant, plaintiff obtained an order of the court setting the case down for trial on the sixth of October. Negotiations for a compromise and settlement had been pending between the parties, and were undetermined when the last order was made. On the twenty-third of September the defendant, without obtaining leave of the court, and without notice, filed an amended answer, setting up, among other defenses not contained in the original answer, prior appropriation by defendant, and those under whom it claimed. A copy of the amended answer was delivered to and received by plaintiff's attorneys, without objection and without protest. No notice was given that the defendant would apply for leave to file the amended answer. On the sixth of October the case was called for trial. The plaintiff asked a postponement until the following day, because certain depositions had not been returned. Defendant objected to the postponement, unless the testimony of a witness, who did not wish to be detained, could be taken. The parties consented to the examination of the witness, which was had, and further hearing postponed. On the following day, October 7th, the case was called for trial, and answered "ready" by both parties. Before further proceeding the plaintiff moved to strike from the files the answer of September 23d, because it had been filed without leave, and


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