69 Cal. 278. See 6 Waite's Actions and Defenses, 282.) There is no such inconsistency between the Penal Code and the act of 1859 that effect cannot be given to both. Repeals by implication are not favored. (Christy v. Board of Supervisors, etc., 39 Cal. 10; Ex parte Smith, 40 Cal. 419.) In order to show that the former statute has been repealed by implication it must appear that the last statute covers the whole subject matter of the former. (United States v. Tynen, 11 Wall. 95; Weeks v. Walcott, 15 Gray, 54; Nichols v. Squire, 5 Pick. 168; Swann v. Buck, 40 Miss. 268; Board of Commrs. v. Potts, 10 Ind. 286.) The act of 1859 is not unconstitutional. The state had a right to grant an exclusive right to fish in a part of the waters of a navigable stream. (Hooker v. Cummings, 20 Johns. 90; 11 Am. Dec. 249.) The state has the right to regulate the tenure of real property within its bounds. It holds a class of property, such as floating fish and embedded fish, as to which there can be no use or enjoyment except in appropriation. (Crandall v. State, 10 Conn. 343; Weston v. Sampson, 8 Cush. 347; 54 Am. Dec. 764.) Each state owns the beds of all tide waters within its jurisdiction, unless granted away. (Pollard v. Hagan, 3 How. 212; Smith v. Mary land, 18 How. 74; Mumford v. Wardwell, 6 Wall. 436; Weber v. Harbor Commrs., 18 Wall. 66.) It follows that the right to fish in waters not navigable is common to all, except an exclusive right be acquired by an individual by grant or prescription. (Washburn on Easements, sec. 412; Rogers v. Jones, 1 Wend. 327; 19 Am. Dec. 493; Delaware etc. R. R. Co. v. Stump, 8 Gill & J. 479; 29 Am. Dec. 561.)

HARRISON, J.-In addition to the facts presented upon the former appeal in this case (99 Cal. 303), the court has now found that the change in the channel of Eel river left no portion of the lands included in surveys 36 and 42 on the north side of the river; and that at low tide the bed of the old channel is dry in places between the island and the plaintiff's land. It was

held upon the former appeal that the land of the defendants is bounded by the high-water mark on the south side of the river, and that the southerly line of the plaintiff's land is the high-water mark on the north side of the river; that, as the low-water mark is on the south side of the island, and the old channel of the river between the island and the plaintiff's land is above lowwater mark, the plaintiff is within the provisions of section 2 of the act of 1859 (Stats. 1859, p. 298), which gives to the owner of lands fronting on the river "the exclusive right and privilege of casting, hauling, and landing seines and nets on their own water-front," and provides that for the purposes of that act "all bars and the bed of said river lying between the lines of the official survey and extreme low-water mark shall be deemed and held to be the water-front of the landowner whose lines border on said river, or run nearest thereto." The court below, therefore, could render no other judg ment than that the plaintiff was entitled to the exclusive right of casting nets and seines for salmon on the south side of the island in front of his lands, and enjoining the defendants from interfering therewith, or making claim thereto.

Counsel in the briefs filed herein have discussed at considerable length the question of the title to the lands in the bed of Eel river, and also the power of the state to alienate these lands; but as these questions are not involved in the case, it is unnecessary to express any opinion thereon. The case presents for determination simply the question of the respective rights of the parties under the aforesaid statute of 1859 to exercise a right of casting seines and nets for salmon in the waters of Eel river, fronting upon the lands of the plaintiff. The state, by virtue of its sovereignty, has authority to regulate fisheries within its borders, and may prescribe the places, as well as the times, in which fish may be taken, and may make exclusive grants of fisheries in designated waters, so far as the same do not impair pri

vate rights already vested. (Gould on Waters, sec. 189; Commonwealth v. Vincent, 108 Mass. 447; Wooley v. Campbell, 37 N. J. L. 163; People v. Doxtater, 75 Hun, 472.) By the aforesaid act of 1859 this power was exercised in reference to the mode and times of catching salmon in Eel river, and the exercise of the right was limitd to the owner of lands fronting upon the river. By the same act the owner was given a right of action against any other person who should cast or haul a net or seine in the waters of the river fronting on his land. So long as this law remains in force the right thus conferred is appurtenant to the land, and its invasion by another is the subject of judicial cognizance. "If the plaintiff has a right to the use and enjoyment of the property, that is sufficient to have his right protected against invasion by another." (Moore v. Clear Lake Water Works, 68 Cal. 150.)

These provisions of the act of 1859, which form the basis of the plaintiff's right of action, are not repealed by sections 634 to 636 of the Penal Code. These sections are intended merely to regulate the times and mode of catching salmon. Within the times and mode thus prescribed the owners of the lands fronting on Eel river may still ex ercise the right of catching salmon which was conferred upon them by the act of 1859.

The judgment gives to the plaintiff the exclusive right of casting nets in Eel river, irrespective of the purposes for which they are cast, and enjoins the defendants from casting any nets in the waters fronting upon the plaintiff's land. The title of the act of 1859 is "to regulate salmon fisheries on Eel river," and the act itself purports to confer a right of action in favor of the owner of lands fronting thereon, only against those who shall "cast, haul, or draw any seine or net on Eel river for the purpose of catching salmon." The judgment is broader than is justified by the statute, and should be modified by limiting it in this respect.

The court below is directed to make a modification of

its judgment in accordance with this opinion, and as so modified the judgment will stand affirmed. The costs of the appeal are to be borne by the appellant.

GAROUTTE, J., and VAN FLEET, J., concurred.

[No. 15855. Department One.-May 24, 1895.]

J. J. RAUER, RESPONDENT, v. ROBERT BRODER ET AL., DEFENDANTS, W. H. SIGOURNEY, APPELLANT.

ACTION UPON NOTE-EXECUTION-INDORSEMENTS-ADMISSIONS OF ANSWER EVIDENCE.-In an action upon a note which is set out in the complaint with the indorsements thereon, where the complaint specifically avers the execution of the note and its indorsement by the payees and by another party, and none of these averments are denied in the answer, except the last indorsement, no evidence is necessary as to the execution of the note, or as to the first indorsement. ID. LIABILITY OF INDORSER-TIME OF DEMAND.-Where a note is pay. able at a specified date, and there is no waiver of demand and notice, in order to charge an indorser who has indorsed the note before maturity, it is essential to his liability that a demand should be made upon the maker upon the very day upon which the note falls due; and where it is not made until the following day, and no excuse therefor is claimed or proved, the effect is to discharge the indorser from liability.

APPEAL from a judgment of the Superior Court of the City and County of San Francisco and from an order denying a new trial.

The facts are stated in the opinion.

Bull & Cleary, and A. W. Crandall, for Appellant.

The note was dated September 1, 1890, and was due sixty days after date, and, therefore, fell due October 31, 1890, the day before the presentment of the note. (Civ. Code, secs, 10, 3132; Presbrey v. Williams, 15 Mass. 193; Cornell v. Moulton, 3 Denio, 12; Blackman v. Nearing, 43 Conn. 56; Wood on Limitation of Actions, 95; Saben v. Burke (Idaho, Jan. 31, 1894), 37 Pac. Rep. 332.) Presentment must be made on the date of maturity or the indorser is discharged. (Civ. Code, sec. 3131,

subd. 5; Am. & Eng. Ency. of Law, 386, 401; Wilson v. Senier, 14 Wis. 381; 21 Am. Rep. 634; Hoffman V. Hollingsworth (Ind. App., June 6, 1894), 37 N. E. Rep. 960; 1 Parsons on Contracts, 268; 1 Waite's Action and Defenses, 639.)

F. A. Berlin, and E. J. McCutchen, for Respondent.

The question of date of maturity of the note is raised on appeal for the first time. The memorandum at the bottom of the note below the signature reads, "Due at Bank of Visalia, Nov. 1st, 1890," and that memorandum must be presumed to be a part of the note. (Daniell on Negotiable Instruments, secs. 74, 79, 149-51, 154; Turnbull v. Thomas, 1 Hughes (U. S. Cir. Ct.), 172; Benedict v. Cowden, 49 N. Y. 402; 10 Am. Rep. 382; Dewey v. Reed, 40 Barb. 21; Wait v. Pomeroy, 20 Mich. 427; 4 Am. Rep. 395; Randolph on Commercial Paper, sec. 191; Franklin Sav. Inst. v. Reed, 125 Mass. 365; Heywood v. Perrin, 10 Pick. 228; 20 Am. Dec. 518; Benthall v. Hildreth, 2 Gray, 288; Ulmer v. Reed, 11 Me. 293; Tiedeman on Commercial Paper, sec. 41; Fletcher v. Blodgett, 16 Vt. 26; 42 Am. Dec. 487; Randolph on Commercial Paper, sec. 190; Turnbull v. Thomas, supra; Tuckerman v. Hartwell, 3 Greenl. 147; 14 Am. Dec. 225; Jones v. Fales, 4 Mass. 245; Heywood v. Perrin, supra; Springfield Bank v. Merrick, 14 Mass. 322; Coolidge v. Inglee, 13 Mass. 26; Shaw v. First Meth. Soc. etc., 8 Met. 223; Barnard v. Cushing, 4 Met. 230; 38 Am. Dec. 362; Makepeace v. Harvard College, 10 Pick. 298; Johnson v. Heagan, 23 Me. 329; Henry v. Coleman, 5 Vt. 403; Way v. Batchelder, 129 Mass. 361; Fitch v. Jones, 5 El. & B. 238.)

SEARLS, C.-This is an action on a promissory note, dated September 1, 1890, made by Robert Broder for two thousand eight hundred and eighty dollars, payable sixty days after date, without grace, with interest at six per cent per annum, to W. H. Sigourney, or order, "Due at the Bank of Visalia of Harrell & Son."