(68 Cal. 146)

MOORE v. CLEAR LAKE WATER-WORKS. (No. 9,452.)

Filed November 30, 1885.

1. DIVERSION OF WATER-INJUNCTION AGAINST ALLEGATIONS OF COMPLAINT. Complaint in action by appropriator of water in stream to restrain unlawful diversion thereof need not allege that plaintiff is in a position to use the water himself, or that he is in any position which gives him a right to furnish it to others, but it is sufficient if he allege that he has a right to the use and enjoyment thereof.

2. CONTINUOUS DIVERSION OF WATER-RELIEF IN EQUITY.

A continuous wrongful diversion of water will be restrained in equity at the instance of a prior appropriator thereof, although no actual damages are averred or proved, the relief being granted in such cases to prevent the wrongful acts from ripening into a right.

3. FINDINGS-SUFFICIENCY OF.

A finding that "all the allegations of the complaint herein are true." etc., and that “all the allegations of the answer herein are untrue," is sufficient. In bank. Appeal from superior court, county of Yolo.

Fox & Kellogg, for appellant.

W. B. Treadwell, F. E. Baker, and Wallace, Greathouse & Blanding, for respondent.

MORRISON, C. J. This case comes before us on the judgment roll alone, and the principal points are as to the sufficiency of the complaint and findings to support the judgment. The alleged cause of complaint is the diversion of water by defendant from plaintiff's ditch from a stream known as Cache creek, in the county of Yolo. There are two counts in the complaint; the first of which alleges"That the plaintiff is the owner and in the possession of a certain water ditch in said Yolo county, generally known and called the Woodland' or 'Moore's' ditch, which commences and heads in a natural water-course or stream flowing through said county, well known as Cache creek,' at a point in said creek near the north-east corner of the lands belonging to the estate of W. J. Campbell, deceased, and runs thence in a general easterly course about two and one-half miles to a point where it branches or forks, one branch or fork thereof running thence in a general south-easterly direction about five miles, and the other branch or fork running from said point in a general north-easterly course about two and one-half miles; that said ditch, during all the times hereinafter mentioned, had the capacity to carry one hundred and eighty cubic feet of water, running and flowing at the velocity of four feet per second; and that plaintiff and his grantors and predecessors in interest have been the owners of, and in the possession of, said ditch, and using and operating the same, for more than ten years next before the commencement of this action. Plaintiff further alleges that he is the owner of certain water-rights, viz., the right to appropriate and take out from the waters of said Cache creek, flowing naturally therein at the head of said ditch, so much water as said ditch has the capacity to carry as aforesaid, and to divert the same into and through said ditch, and to use said water and furnish the same to others, to be used for domestic, stock, and agricultural purposes; and that he and his grantors and predecessors in interest have been the owners of such water-rights continuously for more than ten years next before the commencement of this action, and have, during said time, except when such rights were interrupted by defendant, as hereinafter stated, been in the uninterrupted use and possession of such water, and diverted the same at said point, and used and furnished the same to others to be used for domestic, stock, and agricultural purposes. Plaintiff further alleges that said defendant, by means of a

dam erected and constructed across and from the side of said Cache creek at a point on said creek about thirty miles above the head of plaintiff's said ditch, is now taking, and at divers times during the past three years has taken, and diverted and appropriated to its own use the waters of said creek, which said plaintiff and his predecessors were entitled to have flow down the channel of said creek to and into the head of plaintiff's said ditch, and through the same as aforesaid, and has, during the times last aforesaid, deprived, and is depriving, the plaintiff of such water, and thereby prevented plaintiff from receiving into his said ditch the waters of Cache creek, which said plaintiff and his predecessors were all the time herein before mentioned entitled to have flow down said creek, and into his ditch as aforesaid; that defendant claims that it has the right to take out and divert said water, and prevent the same from flowing down the channel of said creek and into and through plaintiff's said ditch, and the right to deprive plaintiff of said water; but plaintiff alleges that such taking, appropriation, and diversion of the waters of said creek by the defendant, as aforesaid, is unlawful and wholly without right, and in violation of the rights of plaintiff, to the great and irreparable injury and damage of plaintiff; and plaintiff alleges that said water so diverted by defendant, as aforesaid, and prevented from flowing down said creek and into plaintiff's said ditch, as it of right ought to flow, is of great value, viz., of the value of four dollars per foot for twenty-four hours; and that plaintiff has been and is greatly damaged by said diversion. Plaintiff further alleges that said ditch of defendant is a permanent ditch, and that defendant intends and threatens to continue to divert said water as aforesaid, and will perma⚫nently divert the same and prevent it from flowing into plaintiff's said ditch, where of right it ought to flow, if not restrained by this court, and that said acts, and threatened acts, of defendant will cause great and irreparable injury to plaintiff if not prevented by a decree of this court enjoining the same."

To this count there was a general demurrer that the complaint did not contain facts sufficient to constitute a cause of action, which was overruled in the court below, and here the point is made that the count fails to show that the plaintiff is in a position to use the water himself, or that he is in any position which gives him a right to furnish the water to others. The allegation of these matters is not essential to plaintiff's right of action. If he has a right to the use and enjoyment of the property, that is sufficient to have his right. protected against invasion by another, and his ownership of the property carries with it the right to any lawful enjoyment of it, either by using it himself, or disposing of it to others.

Another point is that there is a perfect remedy at law, therefore injunction will not lie, and in support of this proposition the learned counsel cites Richards v. Kirkpatrick, 53 Cal. 433. It is true, as held in that case, that a party is not entitled to an injunction in a case where he has a plain, speedy, and adequate remedy at law, but that is not this case. Here the plaintiff complains of a continuous wrongful act, and consequent infringement of his rights, and therefore prays for an injunction to stay such continuous injury, and it is only in a court of equity, and by means of an injunction, that an adequate remedy can be had. And it was not necessary for the plaintiff to aver or prove actual damages. The interposition of a court of equity was required to prevent defendant's wrongful acts from ripening v.8P,no.12-52

into a right, and on that ground alone the interference of a court of equity was properly asked and granted. Webb v. Portland Manuf'g Co., 3 Sum. 189. But the allegations in the complaint showing an injury inflicted by defendant upon the rights of the plaintiff are sufficient. 2 Chit. Pl. 790-794; Lorenz v. Jacobs, 3 Pac. Rep. 654. Although not sufficiently definite in its terms, the complaint was not obnoxious to a general demurrer, and the demurrer on the sole ground that the complaint did not state facts sufficient to constitute a cause of action was properly overruled.

What we have said with reference to the first count in the complaint applies with equal force to the second. The findings are that "all the allegations of the complaint herein are true, except that the capacity of the ditch of the plaintiff therein described is four hundred and thirty-two cubic feet of water per second; (2) that all the allegations of the answer herein are untrue." These findings were sufficient. Pralus v. Pacific, G. & S. M. Co., 35 Cal. 30; Carey v. Brown, 58 Cal. 180.

Judgment affirmed.

We concur:

THORNTON, J.; MCKEE, J.; MYRICK, J.

(68 Cal. 123)

PACKARD V. Moss. (No. 8,551.)

Filed November 27, 1885.

1. VOID SHERIFF'S DEED-EFFECT TO GIVE COLOR OF TITLE.

Color of title is defined as an apparent title, founded upon a written instrument, such as a deed, levy of execution, decree of court, or the like. A conveyance, to give color to title, must be good in form, contain a description of the property, profess to convey the title, and be duly executed; and a sheriff's deed, although in fact invalid and insufficient to pass the title, or actually void, because founded on a void judgment, or voidable, if it contain these requirements, will give color of title.

2. COLOR OF TITLE--CONVEYANCE BY TENANT IN COMMON

Where one co-tenant assumes to convey the entire land, and does convey by metes and bounds, his deed will give color of title; and if possession is taken thereunder, the purchaser claiming title to the whole premises, it will amount to an actual ouster and disseizen of the other tenants, and such possession is adverse, and if continued for a sufficient length of time, will bar the right of the other co-tenants to recover.

3. COLOR OF TITLE-OCCUPANCY-QUESTIONS OF LAW AND FACT.

What constitutes color of title is a question of law for the court. The question of occupancy under it is one of fact for the jury.

4. FINDINGS

EVIDENCE.

Findings held sustained by the evidence.

1. STATUTE OF LIMITATIONS-UNITED STATES GOVERNMENT TITLE.

The statute of limitations does not commence to run against a title, founded upon a certificate of purchase from the state of swamp and overflowed lands, until the same have been certified to the state by the United States govern

ment.

6 RIGHTS OF ENTRY-STATUTE OF LIMITATIONS.

Where a person not in possession, having two separate rights of entry, loses one of them by lapse of time, the other is not impaired thereby, and he is allowed a new period in which to pursue his remedy under the second right, although he has neglected the first.

Commissioners' decision.

In bank. Appeal from superior court, county of San Joaquin. J. B. Hall, for appellant.

J. H. Budd and F. T. Baldwin, for respondent.

SEARLS, C. The judgment and order denying a new trial in this cause were affirmed, upon the authority of Packard v. Johnson, (No. 8,550,) by department 1, in an opinion filed September 11, 1884. 4 Pac. Rep. 632. Upon petition of counsel for appellant, a hearing in bank was ordered in each of the two causes. The facts being essentially the same in both cases, reference is herein made to the former opinion which was prepared in Packard v. Johnson. We think the conclusions reached in the former decision, with a single exception, are so manifestly proper as to call for no comment.

The exception to which we refer, and on account of which we suppose a hearing in bank was ordered, relates to the question raised upon the plea of the statute of limitations. It was, as we infer from the record, the dominant question upon the trial, and its proper solution is not without difficulties. The instructions of the court to the jury are clear and explicit, and involved a correct exposition of the law touching the question of ouster and adverse possession. In the former opinion it said:

"In the case at bar the question of ouster and of adverse holding for five years after the ouster, were questions of fact, and there was evidence at the trial in the court below to sustain the finding of the jury upon that issue."

We understand appellant to attack this position, not upon the ground that the instructions of the court were improper as abstract propositions of law, but upon the theory that there was not sufficient evidence to sustain the legal propositions. His contention is that the evidence fails to show an adverse possession in defendant. The facts essential to an understanding of the case may be stated in brief as follows: W. K. Melville purchased from the state of California and paid in full for 320 acres of swamp and overflowed lands, situate in San Joaquin county. The purchase was made under the act of the legislature of the state of California providing for the sale and reclamation of the swamp and overflowed lands of the state, approved April 21, 1858. On the thirteenth of August, 1858, Melville received a certificate of purchase of the land in question, in the usual form, under which he was entitled to ask for and demand a patent, when thereafter the lands should be confirmed and certified to the state by the general government. On the twenty-sixth of April, 1859, Melville assigned to Alvin G. Ward, who thereafter, and on the fifteenth of November, 1859, assigned to plaintiff and one A. J. Sanor. The land in question was listed and certified over to the state of California by the United States government on the thirty-first day of December, 1866, pursuant to the act of congress of September 28, 1850. On the twenty-fifth day of March, 1859, one William E. Cocke recovered judgment by default against Melville in

the district court of San Joaquin county, upon which execution issued, and was levied upon the property in question, which was in due time sold, purchased by Cocke, and not having been redeemed, the latter received a sheriff's deed, and on the twenty-fourth day of September, 1860, conveyed by quitclaim deed to A. J. Sanor. Sanor and wife conveyed to defendant Moss, by deed dated December 5, 1864. The certificate, assignment, and several deeds mentioned, were recorded in the proper county. The judgment in Cocke v. Melville was entered by the clerk of the court, upon a default taken while a demurrer by defendant to the complaint was on file and undetermined, and the judgment, execution, and sheriff's deed were admitted in evidence, not as proving title, but as evidence that the grantor of defendant entered upon the land in question under color of title, and in aid of defendant's plea of adverse possession and the statute of limitations.

The first question presented is, did the sheriff's deed to Cocke give color of title? "Color of title" is defined to be an apparent title, founded upon a written instrument, such as a deed, levy of execu tion, decree of court, or the like. 3 Wait, Act. & Def. 17; Brooks v. Bruyn, 35 Ill. 394. To give color, the conveyance must be good in form, contain a description of the property, profess to convey the title, and be duly executed. La Frombois v. Jackson, 8 Cow. 589. Containing these requirements, it will give color of title, although in fact invalid and insufficient to pass the title, or actually void or voidable. Ewing v. Burnet, 11 Pet. 41; Murray v. Shanklin, 4 Dev. & B. 289. It will not do to say that a deed is, for reasons not apparent on its face, void, and therefore cannot give color of title, for color of title is not, and does not profess to be, title at all; color of title is that which is a title in appearance, but not in reality. Wright v. Mattison, 18 How. 50. "One of the very essentials of color of title is that it shall be raised by an instrument which appears to convey a title, but in reality conveys none; and it would seem almost ridiculous that it could be of any sort of importance for the purpose of acquiring title under such a conveyance, whether the grantee acted in good faith in obtaining it or not." Wood, Lim. 530, 531.

The sheriff's deed to Cocke purported on its face to convey the title to the latter, contained a description of the property, and was properly executed. At least it is not urged that the sheriff's deed is in other than the usual form. As a foundation of title, it is worthless, by reason of the void judgment in which it had its inception. We are not, however, considering it as a medium for the conveyance of title. An adverse claimant of land is a wrong-doer, and, as such, is treated and known to the law, until, by the lapse of years, his acts, before tortious, are consecrated by time and dignified as lawful. A deed which gives color of title simply measures and fixes the limitsthe extent of a wrongful possession, and while it continues wrongful, may be used against the wrong-doer as evidence of the extent of