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and other lands in the same relative situation. It does not flow in any narrow or defined channel or channels, but in a broad sheet, covering a wide surface. When the river falls below the level of the banks the overflow cannot, of course, find its way directly back into the stream, and consequent ly the lands near the river are drained by the spread and flow of water towards the east and south-east, across the lower lands, such as those of defendant. Left unobstructed in their natural and accustomed flow, these waters soon pass beyond the plaintiff's lands, leaving them fit for cultivation. But recently the defendant, without intending to injure the plaintiff, and acting upon the bona fide belief that he had the right so to do, commenced, and was proceeding to complete, a levee or embankment along his west line, the necessary effect of which will be to prevent the flood water from passing over his land, and to set it back upon the plaintiff's land, causing it to cover a larger area thereof, and to remain thereon for a longer period, than it otherwise would. The plaintiff thereupon commenced this action to enjoin the defendant from erecting or maintaining said levee. A temporary injunction was issued upon the filing of the complaint. Afterwards, on motion of the defendant, and upon affidavits showing the state of facts above set forth, the superior court dissolved the injunction on the ground that the defendant, in erecting and maintaining his levee, was acting within and according to his rights. From this order dissolving the injunction plaintiff appealed, and on September 12, 1889, an opinion was filed by this court reversing the order, upon the authority of Ogburn v. Connor, 46 Cal. 346. See 22 Pac. Rep. 216. A rehearing was subsequently granted upon petition filed on the part of the defendant, in which the correctness of the decision in Ogburn v. Connor is assailed, as is also the construction which we gave to section 801 of the Civil Code.

I think there can be no doubt that we were in error in holding that section 801 of the Civil Code gives to the owner of higher land an easement for the discharge of surface water upon lower land adjoining. That section merely enumerates the different kinds of burdens or servitudes upon lands that may be attached as incident or appurtenant to the other lands; or, in other words, it is a mere definition of easements appurtenant, and makes no pretense of prescribing or regulating the manner of acquiring them. Among the other easements defined are: "(9) The right of receiving water from or discharging the same upon the land. * * * (11) The right of having water flow without diminution or disturbance of any kind." Undoubtedly these are easements which may exist as appurtenant or incident to the lands of one, and as servitudes or burdens upon the land of another, but the question here is not as to what an easement or a servitude is, but as to how it is created, and when it attaches. In

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the solution of this question we derive no assistance from section 801 of the Civil Code. That section is no more authority for saying that the plaintiff has an easement for the discharge of surface water according to its natural flow from his land to that of defendant than it is for saying that he has any other of the 17 kinds of easements enumerated; as, for instance: "(1) The right of pasture. (2) The right of fishing. (3) The right of taking game. *(17) The right of burial." How, then, is the existence of an easement in any particular case to be determined? Ordinarily, an easement is created by contract between the owners of different parcels of land,-that is to say, by grant, either express or implied; but with respect to rights such as that in controversy here, the question of easement or no easement depends upon the law defining the mutual rights and obligations of the owners of land in the relative situations of the tracts belonging to the plaintiff and defendant. What, then, was the law applicable to these lands at the date of their acquisition? It does not appear when either of the parties acquired his land, but it is to be presumed it was subsequent to the 13th of April, 1850, at which date it was enacted that "the common law of England, so far as it is not repugnant to or inconsistent with the constitution of the United States, or the constitution or laws of the state of California, shall be the rule of decision in all the courts of this state." St. 1850, p. 219. This rule continues in force. Pol. Code, § 4468. As there is nothing in the constitution of the United States, or in the constitution or statute law of this state, to which the commonlaw rule on this subject--whatever it may be-can be repugnant, it is manifest that the whole question is solved whenever it is determined what the common-law rule is. In the case of Ogburn v. Connor this precise question was presented, and it was then determined that "when two parcels of land, belonging to different owners, are adjacent to each other, and one is lower than the other, and the surface water from the higher tract has been accustomed by a natural flow to pass off over the lower tract, the owner of the lower tract cannot obstruct this flow. The owner of the upper tract has an easement to have the water flow over the land below, and the land below is charged with a corresponding servitude." This, of course, was intended as a statement of the common-law rule, for otherwise it could not have been the law of this state. But counsel for respondent contends, and counsel for appellant seems to admit, that it is really a statement of the rule of the Roman civil law, and that it is the exact opposition of the common-law rule. It must be confessed that this proposition seems to be sustained by many of the cases cited in the briefs, and if the question were now to be decided for the first time I should certainly find great difficulty in arriving at the conclusion reached by the court in the case referred to. But that decision was rendered

17 years ago, following a previous case, not reported, entitled Castro v. Bailey, and has stood unchallenged ever since. Necessarily, it has become a rule of property and of right respecting interests which have vested during that long interval, and it cannot now be disturbed without manifest injustice to all who have acted upon the faith of it. If it be erroneous, it must nevertheless be upheld upon the principle of stare decisis, and, so far as our action is concerned, the rule must continue to obtain as it is there laid down.

But counsel for respondent, although originally conceding that the order appealed from must be reversed unless the decision in Ogburn v. Connor was repudiated, now contend that the cases may be distinguished, and that this order should be affirmed on the principle applied in Lamb v. Reclamation Dist., 73 Cal. 125, 14 Pac. Rep. 625. In that case this court adopted and applied to the flood waters of our large rivers the principle laid down in the English case of Rex v. Commissioners, etc., 8 Barn. & C. 355, with respect to the waters of the sea, viz., that they are a common enemy, against which every man has a right to defend himself, regardless of the fact that the barriers he erects for the protection of his land may cause the flood to rise higher, or flow with greater force upon his neighbor. We think this is the true principle to apply to the case of parties in the relative situation of the plaintiff and defendant here, especially in view of the policy of all our state legislation respecting our overflowed lands. If the owner of the land next to the river will not, either by himself or in combination with those behind him, erect a levee on the bank, he ought not to be allowed to prevent them from protecting themselves merely because by so doing they prevent his higher land from being drained of the flood waters as rapidly as it otherwise would be. Because his land may be cultivated without artificial protection, he ought not to be allowed to prevent others from using proper means to make their lands productive; and what is true of the owner of the river bank is true in the same sense of each successive owner back of him. It is the interest of all to combine and share the expense of placing a levee on the bank, by which all will be protected; but if those in front will not co-operate with those. behind, and will do nothing for themselves, they must not be allowed to stand in the way of those whose necessities compel them to act. There is no necessary conflict between these views, or the principles they sustain, and the decision in Ogburn v. Connor. That decision refers to surface water having its sources in springs, or descending from the clouds in the form of rain or snow waters; waters, that is to say, which the owner of the higher land cannot keep out by any practicable means. It does not apply to flood waters which the owner of the higher land can restrain by the same means employed by his neighbor. In this case it does not appear that defendant's damn will cause

the plaintiff any injury by holding back the rain-water falling on his land, or any water except the overflow of the Sacramento river. As against that, we think the defendant is entitled to protect himself, and that the plaintiff, if he finds it necessary, may do the like. Order affirmed.

We concur: PATERSON, J.; SHARPSTEIN, J.; Fox, J.; MCFARLAND, J.

(83 Cal. 561) STEPHENS et al. v. PARRISH et al. (No. 13,505.)

(Supreme Court of California. April 16, 1890.)

PLEADING-VERIFICATION-ATTORNEY.

The verification of a complaint by plaintiffs' attorney, which states that plaintiffs are absent from the county where the attorney resides, is sufficient, under Code Civil Proc. Cal. § 446, which provides that a pleading may be verified by the attorney when "the parties are absent from the county where the attorney resides," but requires him to "set forth in the affidavit the reasons why it is not made by one of the parties."

In bank. Appeal from superior court, San Diego county; JOHN R. AITKEN, Judge. Collier & Haines, Shaw & Holland, and Parrish, Mossholder & Lewis, for appellants. J. B. Mannix and Brunson, Wilson & Lamme, for respondents.

Fox, J. The only point made on this appeal is as to the sufficiency of the verification of the complaint. It reads as follows: "State of California, county of San Diego-ss.: J. B. Mannix, being duly sworn, says that he is the attorney for the plaintiffs in the aboveentitled action; that he resides in the said county of San Diego; that the plaintiffs are absent from the said county; that he has read the foregoing complaint, and knows the contents thereof, and that the same is true, of his own knowledge, except as to matters which are therein stated on his information or belief, and as to those matters he believes it to be true. J. B. MANNIX. Subscribed and sworn to before me this 4th day of April, 1889. THOMAS HIGGINS, Notary Public. [Seal.]" Section 446 of the Code of Civil Procedure provides that, "where a pleading is verified, it must be by the affidavit of a party, unless the parties are absent from the county where the attorney resides, or from some cause unable to verify it, or the facts are within the knowledge of his attorney or other person verifying the same. When the pleading is verified by the attorney, or any other person except one of the parties, he must set forth in the affidavit the reasons why it is not made by one of the parties." The verification in this case is made by the attorney, and distinctly sets forth the first of the conditions which authorize the mazing of it by some person other than a party,that the plaintiffs are absent from the county in which the attorney resides. This is the only one of the conditions under which the law excuses the making of the verification by a party that is given in the affidavit, and

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MOYLE et al. v. LANDERS et al. (No. 11,906.)

(Supreme Court of California. April 26, 1890.) CORPORATION-STOCKHOLDER'S ACTION - PARTIES.

1. Where an action is brought against the directors of a corporation by some of its stockholders in behalf of themselves and all other stockholders who see fit to join them, to recover moneys alleged to have been fraudulently misappropriated, an objection that one of them has been made a plaintiff since the filing of the original complaint cannot be sustained when the complaint shows that he is a stockholder, and the record does not show when he was made a party. The presumption is that he was made a party by leave of court.

2. A demurrer to a complaint will be overruled where the complaint is not ambiguous nor unintelligible in the particulars specified in the demurrer, though obscure and multifarious.

In bank. Appeal from superior court, city and county of San Francisco; T. H. REARDEN, Judge.

L. E. Bulkeley, for appellants. H. G. Sieberst, for respondents.

Fox, J. This is a bill in equity brought by two stockholders of the defendant, the Andes Silver Mining Company, against the directors of said company and certain others, for an accounting, and the recovery, for the benefit of the company, of moneys of the corporation alleged to have been fraudulently misappropriated by the other defendants. The judgment is on demurrer to the fourth amended complaint, from which the plaintiffs appeal. The complaint is a model of obscurity. If it were again amended, and carefully pruned of much of its verbiage in the way of recital and repetition, and reduced to about one-third its present volume, it would be much more intelligible and probably would not then invite demurrer; at least, it would not be as likely to induce a sustaining of the demurrer. A careful analysis of the complaint, however, shows that each of the two counts thereof contains allegations of fact sufficient to constitute a cause of action in favor of the company against the other defendants; that the plaintiffs are, and have been during all the times mentioned in the complaint, stockholders in the corporation; that the facts and circumstances are such as would make it useless to apply to the directors to have the action brought in the name of the corporation, and such as to authorize the plaintiffs to bring and maintain the action in their own names for the benefit of the corporation; that all persons who are not plaintiffs are made defendants, who are

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necessary parties to the action, and that none are made defendants who are not proper parties; that, if the facts stated are true, the action is not barred by the statute of limitations; and that the complaint, though multifarious and obscure, is not ambiguous and unintelligible in the particulars specified in that branch of the demurrer. The demurrer, therefore, should have been overruled, with leave to the defendants to answer. point is made by appellants that the plaintiff Holling has been made such since the filing of the original complaint. The record does not disclose such to be the fact; but, if it is, the presumption is that he was made so by leave of the court, and there is no legal objection to his being joined as plaintiff, as the complaint shows that he was from the beginning, and still is, a stockholder, and the action was brought on behalf of all stockholders who might see fit to join as plaintiffs therein Judgment reversed, with directions to the court below to overrule the demurrer and allow the defendants to answer.

We concur: BEATTY, C. J.; PATERSON, J.; MCFARLAND, J.; SHARPSTEIN, J.; THORNTON, J.

(83 Cal. 571)

MCCALLION et al. v. HIBERNIA S. & L. Soc. et al. (No. 12,423.)

(Supreme Court of California. April 24, 1890.)

APPEAL-BOND-JUDGMENT AGAINST SURETIES.

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1. Defendants appealed from a judgment and an order denying a motion for a new trial, and gave an undertaking, with sureties, "that if the said judgment appealed from, or any part thereof, be affirmed, or the appeal be dismissed, the appellants will pay to the plaintiffs the amount directed to be paid by the said judgment, and that, if the appellants do not make such payment within thirty (30) days after the filing of the remittitur from the supreme court in the court from which the appeal is taken, judgment may be entered, on motion of the respondents, in their favor, against the sureties." Held, that the undertaking related only to the appeal from the judgment itself, and not to the appeal from the order denying a new trial, and did not authorize judgment, on motion, against the sureties, on receiving a remittitur that "the order of the superior court" was affirmed.

2. In such case, it is incumbent on plaintiffs, on making the motion, to show that 30 days had elapsed since the filing of a remittitur on appeal from the judgment; and a certificate of the clerk of the supreme court filed after notice of the motion was given, and only four days before the hearing, cannot help plaintiffs, even though the certificate should be deemed to be a remittitur.

Commissioners' decision. Department 1. Appeal from superior court, city and county of San Francisco; JAMES G. MAGUIRE, Judge.

D. L. Smoot, for appellants. M. C. Has sett and Theodore Bradley, for respondents.

HAYNE, C. This was a motion by plaintiffs for judgment against the sureties on an undertaking on appeal. The motion was denied, and the plaintiffs appeal. The action related to the right to a deposit in the Hibernia Bank. The bank paid the money into

court, and other parties were substituted as defendants. The plaintiffs recovered a judgment; and the substituted defendants appealed from such judgment, and from an order denying their motion for a new trial. In order to effect a stay of execution, the substituted defendants gave, in addition to the $300 undertaking, an undertaking in double the amount of the judgment, which undertakings were in the same instrument. The promise of the sureties set forth in the stay undertaking was as follows: "That if the said judgment appealed from, or any part thereof, be affirmed, or the appeal be dismissed, the appellants will pay to the plaintiffs the amount directed to be paid by the said judgment, or the part of said amount as to which the same shall be affirmed, if affirmed only in part, and all damages and costs which may be awarded against the appellants upon the appeal, and that, if the appellants do not make such payment within thirty (30) days after the filing of the remittitur from the supreme court in the court from which the appeal is taken, judgment may be entered, on motion of the respondents, in their favor, against the undersigned sureties," etc.

Under this agreement, we think it clear, in the first place, that the stay undertaking related to the appeal from the judgment, and not to the appeal from the order on motion for new trial. It is not doubted that a stay undertaking can be so drawn as to effect a stay on appeal from an order denying a new trial. See Fulton v. Hanna, 40 Cal. 278. But the undertaking here was not so drawn. Its condition was that "if the said judgment appealed from, or any part thereof, be affirmed, or the appeal be dismissed, the appellants will pay," etc.; and it is therefore, clear that, before the liability of the sureties upon the stay undertaking became fixed, the appeal from the judgment must have been disposed of, either by affirmance or dismissal. A disposition of the appeal from the order alone was not sufficient.

In the next place, the sureties, by the express provision of their contract, were to become liable to a proceeding of this kind upon the stay undertaking only in case of nonpayment by the principals "within thirty days after the filing of the remittitur from the supreme court;" and this, evidently, refers to the remittitur upon the appeal from the judgment, which, as we have seen, is the appeal to which the stay undertaking relates. Consequently the sureties were not in default until 30 days after the filing of the remittitur upon the appeal from the judgment; and, this being so, it was necessary for the moving parties to show that 30 days had elapsed since the filing of the remittitur on that appeal. The remittitur which they introduced in evidence was on appeal from the order only. Its language is that "the order of the superior court be, and the same is hereby, affirmed." It says nothing about the appeal from the judgment; and, if the

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certificate of the clerk of the supreme court, introduced in evidence in rebuttal, be deemed to be a remittitur, it does not help the plaintiffs, because it was filed after the notice of motion was given, and only four days before the hearing and the order denying the motion. The way this condition of affairs came about was, probably, that the appeal from the judgment was dismissed nearly a year before the appeal from the order denying the motion for new trial was disposed of; and, from inadvertence, the clerk of the court omitted either to send down a separate remiititur on the dismissal, or to include it in the remittitur on affirmance of the order. But the omission of the clerk cannot take away the right of the sureties to stand upon their contract. They were not in default until 30 days after the filing of the remittitur on the appeal from the judgment, and consequently the motion for judgment against them was properly denied.

This disposes of the appeal before us, and, as the order appealed from must be affirmed, no other questions can arise on the return of the case to the court below; and hence it is not necessary or desirable to express an opinion upon the other questions discussed, although they may, possibly, arise in some other proceeding. See State v. McGlynn, 20 Cal. 276. We therefore advise that the order appealed from be affirmed.

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1. A tax-payer whose property has been assessed at a sum greater than its true value must make application for relief to the board of equalization, according to the provisions of Gen. St. Nev. $ 1091, and, if he fails to do so, the overvaluation cannot avail him as a defense in an action by the state to collect the taxes.

2. An allegation that defendant's property is assessed "in an amount greatly in excess of that authorized by law" is insufficient to raise an issue as to the value of the property. It must show what its real value was.

3. Gen. St. Nev. § 1091, provides that "where the person complaining of the assessment has refused to give the assessor his list under oath, as required under this act, no reduction shall be made by the board of equalization in the assessment made by the assessor." Held, an allegation that defendant made application to the board to have his assessment reduced, without any averment that the sworn statement was furnished the assessor, or that no demand for it was made, was insufficient as a defense to an action for the taxes.

4. An objection, in an action by the state to recover taxes, to the introduction of the delinquent tax-roll in evidence, on the ground that it is not properly verified by the county treasurer, will not be considered where defendant, after his objection is overruled, introduces the original assessment roll, which gives the true assessment of his property, as the error, if any existed, was cured by the introduction of the original assessment.

5. Where the dollar-mark is placed at the head

of the column of figures showing the amount of taxes assessed against each piece of property, it is not necessary that it should be prefixed to each item.

6. The omissions of officers to perform the duties required of them "between the assessment and commencement of suit" constitute no defense to a suit for taxes, as the statute (Gen. St. Nev. $1108) provides that "the acts herein required between the assessment and commencement of suit shall be deemed directory merely."

7. The supreme court will not review the evidence on appeal for the purpose of determining its sufficiency to sustain the findings of the lower court unless there has been a motion for a new trial.

Appeal from district court, Eureka county; A. L. FITZGERALD, Judge.

Gen. St. Nev. § 1091, provides that the board of equalization shall have power to determine all complaints made in regard to the assessed value of any property, and may change and correct any valuation, if they deem the assessment either above or below its true value, whether said sum was fixed by the owner or assessor, except that, in case where the person complaining of the assessment has refused to give the assessor his list under oath, no reduction shall be made. Section 1108 provides that the acts required to be performed by the county officers in regard to notices, etc., "between the assessment and commencement of suit, shall be directory merely."

Rives & Beatty, for appellants. The Attorney General, Peter Breen, Dist. Atty., and A. E. Cheney, for respondent.

HAWLEY, C. J. This is an action to recover delinquent state and county taxes.

1. Appellants claim that the court erred in striking out certain portions of their answer, alleging that the assessment was fraudulently and illegally made, in this: that it was not equal in valuation with that of other property similarly situated and of the same value; that it was assessed “in an amount greatly in excess of that authorized by law, to-wit, its true cash value;" that the assessment was arbitrary, as appellant Sadler neither signed, swore to, or made any return of his property; that he appeared before the board of equalization, and protested against the assessment, and demanded that it should be reduced and "fixed at its true value;" and that said board refused and neglected to equalize the same, or any part thereof. This court decided, in State v. Eastabrook, 3 Nev. 180, that it was no defense to a suit for taxes that other property similarly situated was not assessed at all. It is the duty of the assessor to assess all property at its true cash value. If he errs in this respect, the law provides a proper remedy. Gen. St. § 1091. The tax-payer cannot avoid the payment of his taxes on the ground that his property was valued at a higher rate than the property of other persons similarly situated.

The allegation that the property of appellant Sadler was assessed “in an amount greatly in excess of that authorized by law" was not sufficient to raise any issue as to the

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true value of the property, even if he was otherwise entitled to make such a defense, because it does not state what the true cash

value of the property was. Courts do not Ideal with trifles. To raise an issue facts must be stated, showing that there are real questions involved. The allegation, treated as an ordinary pleading denying an indebtedness, amounts to an admission that the true value of the property was only one mill less than the amount of the assessment. But he is not in a position to complain that his property was not assessed at its true value. The statute provides that the tax-payer who has any cause of complaint in this respect may make application to the board of equalization to have his assessment reduced, (Gen. St. § 1091;) and if he fails to do so his remedy is lost, (State v. Wright, 4 Nev. 251.)

Sadler alleges that he made such an application; but he does not aver that he complied with other provisions of the statute, which it was necessary to do in order to entitle him to any redress before the board of equalization. The statute expressly provides that "where the person complaining of the assessment has refused to give the assessor his list under oath, as required under this act, no reduction shall be made by the board of equalization in the assessment made by the assessor." In construing this provision it has uniformly been held by this court that the board of equalization has no jurisdiction to act unless it is shown that the complaining party furnished a statement to the assessor as provided by law, or that no demand was made for such a statement; that the burden of proof is upon the defendant to show that such statement was furnished, or that no demand therefor was made. State v. Commissioners, 5 Nev. 317; State v. Board, 7 Nev. 83; State v. Railroad Co., 17 Nev. 260. The allegations did not present any question of fraud in the assessment. The court did not err in striking out the allegations, as they did not constitute any defense to the action.

2. The objections made to the introduction of the delinquent tax-roll in evidence, in so far as the same relate to a want of proper verification by the county treasurer as required by law, will not be considered. It is, of course, the duty of the officers to comply with the law; yet it has never been held that it was absolutely essential, to enable the state to collect its taxes, that a delinquent tax-roll should exist in strict conformity with the law. Any irregularity in this respect is a defense in an action to recover taxes only to the extent that the party has been injured thereby. State v. Railroad Co., 10 Nev. 61; State v. Mining Co., 15 Nev. 386. And in this case it affirmatively appears that there was no injury. It is always an easy method, in making the proofs on the part of the state, to introduce the delinquent roll, as it is made prima facie evidence "to prove the assessment, property assessed, the delinquency, the amount of taxes due and unpaid, and that all the forms of law in relation to the assess

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