found elaborately set forth in the opinion of this court upon a former appeal. First National Bank v. Bowers, 141 Cal. 253, 74 Pac. 856. Upon the first trial the lower court construed the guaranty given by defendant to plaintiff as being so free from doubt as not to call for or permit the introduction of evidence touching the circumstances of its execution in explanation of it, and held, in accordance with the contention of defendant, that the guaranty of "90 per cent. of the face of all drafts for oranges with bill of lading attached" meant that such bills of lading as accompanied the drafts should have been transferred to the bank by the Haight Fruit Company, so as to operate as a pledge of the oranges and as security for the benefit of the guarantor, and by such transfer to place the consignment under the absolute control of the bank and beyond the control of the fruit company; that this was a condition precedent to her liability under the guaranty, and, not having been complied with, such liability never attached. First National Bank v. Bowers, 141 Cal. 258, 259, 74 Pac. 856. Upon appeal this court held that the wording of the guaranty was not so plain, unambiguous, and certain as to have justified the court in refusing evidence explanatory of it.

A new trial was had before a jury, and such evidence was introduced. The verdict of the jury, followed by the judgment of the court, was in favor of the defendant. Plaintiff's brief upon appeal is devoted in great part to an analysis and criticism of the evidence of the defense and to attacks upon the instructions given by the court. It would be impossible, within the limitations of a judicial opinion, to discuss these matters seriatim. Mrs. Bowers' plea and evidence was in accord with the construction, which, as above stated, the trial court in the first instance put upon the instrument of guaranty. The testimony, in effect, was that it was represented to her by the president of the bank that the bill of lading operated to give the bank control of each shipment of oranges; that she had no knowledge that the fruit company could divert these shipments and obtain money for them as they did, notwithstanding the bill of lading held by the bank. She testified that the guaranty was drawn by one of the bank officials after presentation by her to that official of a form of guaranty prepared by her brother; that the form of guaranty prepared by her brother contained a provision whereby the bank, allowing the Haight Fruit Company to draw 90 per cent. of the face of each draft, was to retain the surplus as a security fund to the end of the season, and that she was thus liable for only 90 per cent. of the face of all drafts drawn during the season, and not for 90 per cent. of the face of each and every draft; that the bank official who prepared the guaranty which she actually signed declared to her that it was in all essential particulars identical with that which she pre

sented for his approval; and that under this representation she executed the guaranty in question.

This evidence, believed by the jury, as from their verdict it was, justifies the judgment of the court, which judgment and the order denying plaintiff's motion for a new trial are therefore affirmed.

GALVIN v. HUNT, Judge. (Supreme Court of California. EXCEPTIONS, BILL

(153 Cal. 103) (S. F. 4,851.) Feb. 24, 1908.)

OF- SETTLEMENT AND SIGNING REQUISITES-INSERTION OF Docu

MENTS-EMBODYING AMENDMENTS.

Plaintiff, who had been ordered to engross a bill of exceptions, was unable to insert certain documents in accordance with the order of the court allowing amendments to his proposed bill, because the documents were lost, and defendant's attorney, who had the only copies in existence, would not allow him to copy them, but descriptions of the documents were inserted. The bill was engrossed by copying plaintiff's proposed bill, and attaching thereto a copy of the amendments allowed. Held, that the judge was not justified in refusing to sign the bill for failure to insert the documents, but he was for failure to embody the amendments in the bill.

In Bank. Mandamus proceedings brought by E. M. Galvin against John Hunt, judge of the superior court of the city and county of San Francisco. Writ 'denied.

Frank McGowan and Robert Ash, for petitioner. E. M. Galvin, in pro. per. John J. Barrett, George C. Ross, and Garoutte & Goodman, for defendant.

SHAW, J. This is a proceeding in mandamus to compel the respondent to sign a bill of exceptions in his official capacity as judge of the superior court of the city and county of San Francisco. It is alleged in the petition that the bill of exceptions, after having been duly settled by the respondent, was by him ordered engrossed; that petitioner thereupon engrossed the bill and presented the same to respondent for his certificate and signature, whereupon he refused to sign or certify it. The petitioner, who was the plaintiff in the suit of Galvin v. Fannen, served on the defendant, Fannen, a draft of his proposed bill of exceptions. Fannen in due time served on Galvin his proposed amendments thereto. The proposed bill and amendments were then presented to the judge and by him settled, a number of the amendments being allowed, and this made it necessary to engross the bill for certification and signature. The' petitioner was directed to engross it, accordingly, and was allowed 10 days to do so. Within that time he presented to the respondent for signature the document which he claims was the engrossed bill. The respondent refused to sign the same, on the ground that it was not properly or correctly engrossed.

Among the amendments proposed and allowed were two calling for the insertion of certain documents which had once been in

possession of Galvin, or his attorney, but which, through the carelessness of one of their employés, had been lost. The only existing copies of these documents were in possession of the attorney of the defendant, Fannen, and said attorney refused to allow Galvin, or his attorney, to see these copies, in engrossing the bill, or to give them the opportunity to have copies thereof made for that purpose. In the proposed amendments these documents were not set out in full, but were merely referred to therein by description. In the engrossed bill they were omitted, and in lieu thereof the descriptions contained in the proposed amendments were set out. In excuse for this omission it was stated therein that the plaintiff was unable to insert them because he had not been furnished with copies. The respondent, in his answer to the petition herein, alleges that the petitioner did have copies of the lost documents and could have inserted them, but upon the hearing before this court, it was shown by affidavit, and virtually admitted, that the only copies the petitioner ever possessed were the originals which had been lost before the settlement of the bill. One of the objections to the engrossed bill was the omission of these documents.

The petitioner contends that it was the duty of the respondent, under the circumstances stated, to require the attorney for Fannen to produce his copies of the documents for use in engrossing the bill, or to afford the petitioner an opportunity to copy them for that purpose, and to allow the petitioner further time to engross the bill until this could be done. If this were the only objection to the engrossed bill offered we think it would have been the duty of the judge to do as petitioner contends. But an inspection of the so-called engrossed bill shows that it is defective in many other particulars. The petitioner had merely copied the plaintiff's draft, as originally proposed, with certain blanks therein filled by inserting the documents called for, and had attached to it a copy, in hæc verba, of the amendments allowed thereto. Some of these amendments called for the omission of long passages of the original draft and the insertion of other and different matter in lieu thereof. Others required the insertion of copies of documents, either in the possession of Galvin or his attorney, or accessible to them. The result of this method of engrossment is a mass of rather incoherent matter, much of which should not appear at all, and the omission of other material matters which should and could have been inserted. In addition to these substantial defects, it appears that the engrossed bill embraces numerous other errors in copying, several of which are material. If the lost documents were supplied and correctly copied, the engrossed bill would nevertheless, because of the other errors referred to, fail to truly or fully set forth the matters directed to be

Where the complaint is uncertain, but it is apparent from the record that defendants were not thereby misled or embarrassed in making their defense, the overruling of a demurrer to the complaint is not ground for reversal.

[Ed. Note. For cases in point, see Cent. Dig. vol. 3, Appeal and Error, §§ 4098-4105.] 2. WATERS AND WATER COURSES - NATURAL WATER COURSES-DIVERSION-ACTIONS-DeFENSES.

In an action to prevent defendants, from diverting the water from a stream used by plaintiffs for irrigation purposes, it is no defense that the stream is dry during the summer months, and that the bed changes often, since such circumstances are usual with a water course, and do not deprive those owning land fronting on the river bed of the character of riparian owners.

3. SAME-USE FOR IRRIGATION.

In an action to enjoin diversion of water from a stream from which plaintiffs irrigate, a finding that plaintiffs' land had been irrigated from the stream for 25 years is immaterial, since plaintiffs are entitled to have it continue in its customary flow, subject to reasonable use by other riparian owners.

4. SAME QUANTITY OF WATER.

In an action to enjoin the diversion of water from a stream, where the evidence showed that plaintiffs had, when the supply permitted, irrigated by means of water taken from the stream, the fact that for several years the stream had been dry for a longer time each year than usual, and that they had not been able to get as much water as theretofore, did not destroy the continuity of their use, or deprive them of the right to use the amount formerly diverted if the stream should again furnish that amount.

5. SAME-INJURY FROM DIVERSION.

Where the evidence, in an action to enjoin a diversion of water from a stream from which plaintiffs irrigated their land, showed that the stream was dry part of the year, and that when the water began to flow it took several weeks to reach plaintiffs' land, owing to the sandy bottom of the bed which must necessarily become saturated before any water would flow over it, a diversion by defendants would postpone the time required to reach plaintiffs and result in their injury, since they were entitled to have the stream maintained in its natural state. 6. APPEAL

QUESTIONS IN LOWER COURTMATTERS NOT PRESENTed.

The appellant cannot complain that the court did not reserve to him a right which was not asserted in his pleadings.

In Bank. Appeal from Superior Court, San Diego County; E. S. Torrance, Judge.

Action by Gaspar A. Huffner and others against F. R. Sawday and others. From a judgment for plaintiffs and an order denying a motion for a new trial, defendants appeal. Affirmed.

W. R. Andrews and Collier, Smith & Holcomb, for appellants. V. E. Shaw and Shaw & Winnek, for respondents.

SLOSS, J. This is an action to enjoin the defendants from diverting water from a stream known as the "San Pasqual River." The plaintiffs recovered judgment, and the defendants appeal from the judgment and from an order denying their motion for a new trial.

The complaint sets forth two counts or causes of action. Each of the counts alleges that the San Pasqual river is a stream arising in the Volcan mountains, in San Diego county, whence it flows in a westerly course through the San Pasqual valley to the Pacific Ocean; that the plaintiffs are, respectively, owners of 17 several parcels of land in the San Pasqual valley, each of which is irrigable and in cultivation, and that said plaintiffs and their predecessors have for more than 30 years cultivated their land by means of water taken from said stream, which furnishes the only means of irrigating these lands. It is alleged that the defendants assert the right to, and, unless restrained, will divert at a point about 25 miles above plaintiffs' lands, the waters of the stream to the extent of 3,000 inches, and that, if the defendants are permitted to make this diversion, each of the plaintiffs will be deprived of water for irrigation.

The foregoing averments are, as has been said, common to both counts. The first contains the further allegation that the San Pasqual river in its natural course flows over, through, and along each of the tracts described as belonging to the various plaintiffs, and that the defendants' asserted right of diversion is based upon a notice of appropriation, according to which the water is to be used upon land situated outside of the watershed tributary to San Pasqual river. The second count alleges, in addition to what has been stated, that 2,500 inches of water is required to properly irrigate the lands belonging to the plaintiffs, and that, in order to obtain such supply, the plaintiffs and their predecessors did, prior to 1878, appropriate from the waters of the stream 2,500 inches, and they have ever since diverted all the water flowing in said stream up to 2,500 inches, and conducted the same upon their several tracts for use therein. It is further alleged in the second count that the water in the stream at plaintiffs' point of diversion rarely exceeds 2,000 inches, and during most of the irrigating season is less than 1,000 inches.

It will be seen that the plaintiffs rely upon two different grounds of objection to the proposed diversion by defendants. In the first count they stand upon their right as riparian proprietors; in the second count they assert a claim as prior appropriators. It may be said at this point that no error was committed in overruling the demurrer to the complaint. The sufficiency of each count to state a cause of action was not, and is not now, questioned. The only points made are that the complaint is uncertain in some particulars. We think the pleading is not open to the objections raised, but, even if it were, it is apparent from the record that the defendants were not thereby misled or embarrassed in making their defense, and the overruling of the demurrer would therefore afford no ground for reversal. Gassen v. Bower, 72 Cal. 555, 14 Pac. 206; Alexander v. Central L. & M. Co., 104 Cal. 532, 38 Pac. 410; Rooney v. Gray Brothers, 145 Cal. 753, 79 Pac. 523.

The answer denies all the allegations of each count, except as to the source of the San Pasqual river, and the assertion by defendants of the right, and their intention, to take and divert 3,000 inches of the waters of the stream, as alleged by plaintiffs. The defendants also plead a separate defense, in which they allege that they hold, pursuant to the mining laws of the United States, certain placer mining claims, of the value of over $1,000,000. That it is necessary in order to work these claims to take the waters of the stream to the extent of 3,000 inches. It is further averred that on April 8, 1893, they posted at the proposed point of diversion a notice of appropriation of the waters of the San Pasqual river, to the extent aforesaid, in accordance with the provisions of section 1415 of the Civil Code; that they duly recorded their notice, commenced the construction of their ditch and tunnel within 60 days after posting their notice, and have ever since continued such construction diligently and uninterruptedly; the work already done being of the value of $25,000, and amounting to three-fourths of the work necessary to be done. It is alleged that this work was done by the defendants in good faith and with the acquiescence and consent of plaintiffs. The answer further alleges that six-sevenths of the water of the watershed flow into the stream below defendants' point of diversion, and that the stream flows on the surface "only during times of flood and immediately thereafter, at all of which times there is sufficient water to supply the plaintiffs fully and adequately without taking or requiring any of the waters claimed by defendants."

The court found that the San Pasqual river is a water course as alleged in the complaint; that the plaintiffs are the owners of the respective tracts claimed by them; that 10 of the 17 holdings described in the complaint border upon the stream. It is found that the plaintiffs' lands have been irrigat

ed from the stream for 25 years, and would be of little value without irrigation. The findings declare that for the past 8 years the entire flow of the stream has been inadequate to irrigate the lands of the plaintiffs, and that if the defendants are permitted to divert the waters from the stream each of the plaintiffs will be deprived of water for irrigating his tract of land, and will suffer irreparable loss and damage. The court found that the defendants had posted and recorded their notice of appropriation, and had performed the work as alleged in their answer, but had not prosecuted the same diligently. The place to which the defendants claim the right to take the water is found to be on a different watershed from that tributary to the San Pasqual river. There is a finding against the plea of acquiescence and consent on the part of the plaintiffs. The judgment decrees that the defendants have no right or title to the waters of the San Pasqual river, and no right to divert the same, and perpetually enjoins them from taking or diverting from the river any of the waters of the stream or in any manner whatsoever interrupting, obstructing, or interfering with the free, usual, or customary flow of water down or through said stream.

Many of the findings are attacked as unsupported by the evidence. In connection with the finding of the existence of a water course as alleged, attention is called to evidence that the San Pasqual river does not at all seasons of the year carry a flowing body of water through the San Pasqual valley, in which the plaintiffs' lands are situated, and that the location of the river bed or channel is subject to change. It appears that in this valley the stream is dry during the summer months, and that its surface flow begins, in years of ordinary rainfall, about the end of November, and ceases in June. The soil is sandy, and the river bed "varies greatly and changes often," as stated by a witness for the plaintiffs. These circumstances are not inconsistent with the existence of a water course, nor do they deprive those owning land fronting on the bed of the stream of the character of riparian proprietors. Lux v. Haggin, 69 Cal. 255, 417, 418, 4 Pac. 919, 10 Pac. 674; Spangler v. San Francisco, 84 Cal. 12, 23 Pac. 1091, 18 Am. St. Rep. 158; Los Angeles Cemetery Ass'n v. City of Los Angeles, 103 Cal. 461, 37 Pac. 375.

Finding 15, to the effect that a large part of each of the tracts described in the complaint has for 25 years been continuously cultivated by means of water taken from the stream, is, it is contended, contrary to the evidence. The finding on this point is, so far as concerns the plaintiffs who have riparian rights, not material. Their right to restrain the diversion, by others than riparian owners, of water which would if undisturbed flow past their lands, does not rest upon

the extent to which they have used the water, nor upon the injury which might be done to their present use. Even if these plaintiffs had never made any use of the water flowing past their land, they had the right to have it continue in its customary flow, subject to such diminution as might result from reasonable use by other riparian proprietors. This is a right of property, a "part and parcel" of the land itself (Duckworth v. Watsonville W. & L. Co. [Cal. Sup.] 89 Pac. 340), and plaintiffs are entitled to have restrained any act which would infringe upon this right. In Southern Cal. I. Co. v. Wilshire, 144 Cal. 68, 77 Pac. 767, the court said: "It is not necessary in such cases for the plaintiff to show damage, in order that it may be entitled to a judgment. It is enough if it appears that the continuance of the acts of the defendants will deprive it of a right of property, a valuable part of its estate. The taking of the water beyond the watershed would, therefore, be an injury to the plaintiff's riparian right which, under the pleadings and findings in the case, the plaintiff was entitled to have enjoined." In Stanford v. Felt, 71 Cal. 249, 16 Pac. 900, it is said: "Nor is the owner lower down the stream required to show, in order to procure an injunction, any actual present damage. The diversion, by lapse of time, may grow into a right. To prevent such result, an injunction will be awarded." These, and other authorities to the same effect, are reviewed in Anaheim Union Water v. Fuller (Cal. Sup.) 88 Pac. 978, 11 L. R. A. (N. S.) 1062, in which the doctrine is reasserted.

In so far, however, as the rights of the plaintiffs rest upon prior appropriation and use, it was no doubt necessary for them to show that the proposed diversion would diminish the flow of water which they had been receiving for use upon their lands. That a part of the lands of each of the plaintiffs had been, for many years, irrigated by means of water taken from the stream, whenever the supply of water permitted, was fully shown by the evidence. The last seven years preceding the trial of the action had been exceptionally "dry," and during them the flow of water had ceased earlier in the spring than in former years. The fact that during this period the plaintiffs had not been able to get as much water as theretofore did not destroy the continuity of their use, nor deprive them of the right to use the amount formerly diverted in the event that the flow of the stream should again furnish such amount. It is urged that there is no evidence to support the finding that the proposed diversion by defendants would cause irreparable damage or loss to plaintiffs. But the plaintiffs offered evidence to show that, during the seven or eight years preceding the trial, the flow of water in the stream had been so light that there was no surface flow at the lower end of the valley. One of defendants' witnesses testified that nobody in the San Pas

qual valley "gets plenty of water for irrigation." It is apparent that if, as matters now stand, the plaintiffs are unable to get from the stream all the water they need (and claim to be entitled to), they will be damaged, if defendants are permitted to divert, at a higher point, 3,000 inches of the water of the stream. It is true that there is evidence to the effect that during the summer months, when the stream is dry in the San Pasqual valley, there is some water running at the defendants' point of diversion. It does not follow, however, that the taking of this water would not injure the respondents. There are long stretches of sandy bottom between the defendants' proposed works and the lands of the plaintiffs. Water flowing over the rocky bed above sinks into the sand, which must become saturated before there can be a flow over its surface. To so fill this sand requires, as a witness testifies, several weeks. The court was justified in drawing from this testimony the inference that an interruption to the flow of this water would prevent or diminish the saturation of the sandy bed underlying the stream and thereby materially postpone the time when a surface flow would come to plaintiffs' lands. Such postponement would be a clear injury to the plaintiffs, whose interest in the waters of the stream included the right to have the river bed continue to hold sufficient water to supply and support the surface stream in its natural state. Los Angeles v. Pomeroy, 124 Cal. 621, 57 Pac. 585; McClintock v. Hudson, 141 Cal. 275, 74 Pac. 849; Cohen v. La Canada Co., 142 Cal. 437, 76 Pac. 47; Verdugo Canyon Water Co. v. Verdugo (filed Jan. 23, 1908) 93 Pac. 1021.

The appellants make the further point that they are restrained from taking any of the water of the stream, although the evidence shows that in times of flood large quantities of water, far exceeding any amount that can be used by the plaintiffs, pass down the stream. It has been held that an injunction will not issue to restrain a diversion of water during times of extraordinary floods where such diversion will not perceptibly diminish the stream below. Edgar v. Stevenson, 70 Cal. 286, 11 Pac. 704; Heilbron v. 76 L. & W. Co., 80 Cal. 189, 22 Pac. 62; Fifield v. S. V. W. W., 130 Cal. 552, 62 Pac. 1054. But the pleadings in this case raise no issue as to the right to take flood waters. The answer contains an allegation (hereinbefore quoted) with reference to the flow of the stream during times of flood, but the purpose of this allegation was, not to claim the flood waters for defendants, but to limit the plaintiffs to the surplus of flood waters remaining after the defendants had taken the 3,000 inches claimed by them. As was said in Anaheim Union Water Company v. Fuller, supra, "The defendants do not propose to limit the diversion to times of high water, but, on the contrary, they will take it during the time of its greatest scarcity. There is no question of the di

version of flood water involved in the case. The right which they assert is to take the ordinary water of the stream." It may be questioned whether the decree, properly construed, purports to deal with anything beyond the ordinary flow of the stream. But, in any event, the appellants are not in a position to complain that the court did not in specific terms reserve to them a right which they had not asserted.

The point is made that the decree should have permitted the defendants to divert the water, on condition that they returned it to the river above plaintiffs' lands, no less diminished than it would have been in its natural flow to the point of return. It may be that a decree so limited would have been proper if the evidence had shown that the defendants were able and willing to make such return of the water. Gould v. Eaton, 117 Cal. 539, 49 Pac. 577, 38 L. R. A. 181; Montecito Valley Co. v. Santa Barbara, 144 Cal. 578, 77 Pac. 1113. But here there was testimony from one of the defendants themselves that the water, if diverted, would return to the San Pasqual valley through the Santa Maria creek, and evidence was introduced to show that this creek joins the Sam Pasqual below the lands of the plaintiffs. If, as the trial court had the right to believe, this was the true state of facts, there was no way in which the defendants could divert the water claimed by them without injury to the plaintiffs.

The findings already discussed lead to the conclusion that the plaintiffs, whether, as riparian proprietors or as prior appropriators of all the waters ordinarily flowing in the stream, had a right superior to that of the defendants, even if the latter did everything required under the statute to constitute a valid appropriation. There is no occasion, therefore, to consider whether the evidence justified the finding that the defendants had failed to prosecute their work diligently. If the finding on this point had been in their favor, it would not have enlarged the rights of the appellants.

The judgment and order are affirmed.

RYAN V. ROGERS et al. (Supreme Court of Idaho. Feb. 17, 1908. On Rehearing, March 12, 1908.)

1. CHATTEL MORTGAGES-PROPERTY COVEREDAFTER-ACQUired ProperTY.

Where a chattel mortgage is executed covering a stock of goods or merchandise constituting the stock in trade of the mortgagor, and contains no provision that it shall also cover afteracquired property, the mortgagee will not be authorized to seize an after-acquired stock of merchandise that has been purchased and put in the business by the mortgagor subsequent to the execution of the mortgage and after a sale of the original stock, where the sale has been