all others. There is some considerable conflict in the authorities as to how far the principles of estoppel and waiver, as applied to regular life insurance companies, are applicable to beneficial societies of the character of the defendant (for a discussion of which subject, see Bacon's Benefit Societies, c. 13); but whatever the correct doctrine may be, it is not strictly pertinent to inquire, since in no event, in our judgment, do the facts upon which plaintiff relies bring defendant within the rule invoked. The facts relied upon as the basis for the alleged estoppel is the following entry, appearing in the minutes of the defendant tribe under date of August 21, 1881: "A statement was made that Bro. J. M. Walsh, being now an inmate of the Napa Insane Asylum, his wife thought him entitled to sick benefits. A point was raised that Bro. J. M. Walsh, having brought on his sickness by an overindulgence in alcoholic beverages, under the law he was not entitled to sick benefits; upon motiòn duly made and carried, the acting sachem is appointed a committee of one to call upon Mrs. J. M. Walsh and explain to her the situation and law as to Bro. J. M. Walsh's eligibility to receive sick benefits"; and the further entry in said minutes, under date of September 1, 1881, as follows: "The special committee previously appointed to interview Mrs. J. M. Walsh reported having discharged the duty imposed, and having explained to her the law and status of Bro. J. M. Walsh in the tribe."

In the first place, it is doubtful if these entries show the making of any formal application for benefits on behalf of the intestate, or more than a mere suggestion looking to such application; but assuming them to be sufficient in that regard, it does not appear that the application was denied on the ground contended for, or denied at all. It appears "a point was raised" that the brother had brought on his infirmity "by an overindulgence in alcoholic beverages," and on that ground was not entitled to sick benefits; but it does not appear that the tribe adopted this view. The sachem was appointed a committee to call on Mrs. Walsh and "explain

to her the situation and law" as to her husband's eligibility to receive sick benefits, which he did. It was the law that he could not be allowed benefits without furnishing the certificate required by the by-law, and non constat that the sachem did not so inform her. These facts wholly fail to sustain the construction put upon them by appellant, and do not tend to estop defendant from now making the defense relied upon.

In view of this conclusion the various other points discussed become immaterial.

The judgment is affirmed.

HARRISON, J., and GAROUTTE, J., concurred.

Hearing in Bank denied.

[No. 15508. Department Two.-August 9, 1895.] ANDREW GLASSELL ET AL., RESPONDENTS, TEODORO VERDUGO ET AL.,

v.

APPELLANTS.

J. C. SCHERER ET AL., INTERVENORS, RESPOND

ENTS.

PARTITION-DIVISION OF WATER RIGHTS-CONSTRUCTION OF DECREE -PARTITION MAP-SPRINGS IN INCLOSED FIELD.-Where the court, in an action of partition, has adopted the report of the referee as to a division of water-rights, and has adopted a partition map referred to in the report, and has provided in the decree in regard to springs which rise within a certain inclosed field delineated on the partition map as lying on both sides of a cross road, the whole of the field delineated on the map will be taken as intended by the decree, although there was in fact an inclosed field to the south of the road, and a field only partly inclosed to the north of the road, and springs arising north of the road are covered by the decree-the question being, not whether there was a substantial inclosure of the whole field, but simply what was the inclosed field referred to in the decree. ID. INCREASE OF WATER-OBSTRUCTION AND DIVERSION.-Where the decree in partition, in respect to the division of water, provides that certain surplus water should be turned into the channels of those springs which rise within an inclosed field, delineated on the partition map to be used by certain other parties, the fact that subsequent to the decree there is an increase of water in the field does not authorize the owner of the field to divert or obstruct the flow of water into the channels of the streams arising in the field.

ID.-DIVISION OF PERCOLATING WATER-DISPOSITION OF SPRINGS.-It is competent by a decree in partition for the court to dispose even of percolating water arising on the land allotted to one of the cotenants, and springs, if clearly included in the allotment in the decree, pass to other parties to whom they were given. ID.-SUPPORT OF FINDINGS.-Where there is evidence to sustain the findings of the court, they will be taken as conclusive upon appeal.

APPEAL from a judgment of the Superior Court of Los Angeles County and from an order denying a new trial. WALTER VAN DYKE, Judge

The facts are stated in the opinion of the court.

Houghton, Silent & Campbell, for Appellants.

Water arising from percolation and of recent origin belongs to the owner of the land upon which the water arises. (Houston v. Leach, 53 Cal. 262; Southern Pac. R. R. Co. v. Dufour, 95 Cal. 615; Hanson v. McCue, 42 Cal. 303; 10 Am. Rep. 299.)

N. C. Burch, and Albert M. Stephens, for Respondents.

TEMPLE, J.-The plaintiffs and the intervenors claim the ownership of certain waters in Verdugo canon in the county of Los Angeles, and complain that defendants are obstructing their use of the same and polluting the stream.

The defendant Teodoro Verdugo owns the land upon which the which the water rises. The other defendants claim under him. All deny obstructing the flow of any water to which plaintiffs or intervenors are entitled, or that they are polluting the stream.

Judgment was against the defendants upon all points, and they appeal from the judgment and from a refusal of a new trial.

All the parties own, or claim under those who own, in severalty, various tracts of land, parts of the rancho San Rafael. The lands included in the rancho were partitioned by a decree of the district court on the twenty-ninth day of November, A. D. 1871. By this

decree the waters on the ranch were divided and assigned to the several parcels of land.

The following extract from the statement found in the record shows all that is necessary to know in regard to said partition:

"That said referees in said partition suit made a report to the court of their proceedings as such referees, which was filed on the 21st day of November, 1871. That said referees in their said report set forth and described the various allotments made by them, and set off in severalty to the various parties in whom interests in said land had been found, as set forth in the report of said referee, James H. Lander, heretofore referred to.

"That the tract referred to in the complaint as containing 2,629.01 acres of the rancho San Rafael was allotted to Teodoro Verdugo, and is the same land shown upon the map attached to and referred to in the final decree of partition, and is the same land upon the map attached and referred to in the final decree of partition, and as shown upon the plaintiff's Exhibit 'A,' hereinafter referred to.

"Paragraph numbered fifteenth of said last-named report contains the entire report made by said referees in partition relating to the apportionment of water on said rancho San Rafael, and is as follows, to wit:

""Fifteenth. Your referees have carefully considered the questions in regard to water, deeming them of the most vital importance to the parties interested in the rancho; and, in granting lands, the practicability of irrigation has entered largely into the value of these tracts most accessible to the sources of water supply. And in order that as much of the lands as possible may be supplied, your referees have endeavored to so adjust the rights and proportions of the several parties owning the various tracts as that, when one party is equally able to draw his supply from either one or another of the various sources, and the same can be used by him. to greater advantage than by the other parties, they have considered it best and most equitable to confine

such party to that stream which cannot be used by the other parties so advantageously as by him, and to restrict his enjoyment of the water in the other courses.

'Excluding those springs which can be naturally made available for irrigating the tract upon which they rise, the localities from which water may be obtained, without the employment of artificial means to raise it to the surface of the earth, may be set down as five in number.

"'1st. The first is the stream that rises in the Verdugo canon upon the tract of land assigned to Teodoro and Catalina Verdugo, as tenants in common, near the foot of a spur running down from the Chuchilla of Francisco Maria, east of and near to both the road that runs through the canon and the house or "jacal," in which at present reside a family of Mexicans bearing the name of "Paco."

""2d. The second are the streams that rise west of the said road within the inclosure of the said Teodoro, and east of his house.

""These constitute and form by far the largest body of flowing water upon the ranchos, excepting the Los Angeles river, which forms one of the boundaries.

""3d. The third is a stream that rises near the south boundary of the 1,702 64-100 acre tract assigned to P. Beaudry, near the Arroyo Seco, and within a short distance from the ruins of the old adobe house wherein one Joaquin Chabulla formerly resided.

""This stream flows naturally in a southerly direc tion.

"4th. The fourth is the Arroyo Seco. The supply from this, though at present is only an undefined interest, may in the future be so developed and established as to be worthy of their notice.

""The probability of obtaining water from the Arroyo Seco did not affect the grades as established by us of those lands lying along it.

""5th. The fifth is the Los Angeles river, from which, by means of canals and ditches, it is the opinion of