has relation to the water already owned, and that, therefore, the action is in relation to property held by the corporation, nevertheless, it manifestly appears that the decision upon the question of the holding of property claimed by plaintiff as its own may be determinative of the controversy.

It must be, therefore, that this action is in relation to property held by plaintiff, and cannot under the circumstances be maintained.

Nothing herein said is to be construed as determining the sufficiency or insufficiency of the complaint. The demurrer, upon the ground that it failed to state a cause of action, was overruled, and the appellant here is not the aggrieved party under that order. It is preferable, under every consideration, that the question, if it reach this court, should, so far as this action is concerned, be considered as res integra.

The judgment appealed from is affirmed.
MCFARLAND, J., and TEMPLE, J., concurred.
Hearing in Bank denied.

[S. F. No. 71. In Bank.-July 11, 1895.]

PAOLA BACIGALUPO, EXECUTOR, ETC., PETITIONER, v. SUPERIOR COURT OF THE CITY AND COUNTY OF SAN FRANCISCO, RESPONDENT.

PETITION TO REVOKE PROBATE OF WILL-CITATION-CONSTRUCTION OF CODE-JURISDICTION.-A citation to be issued under section 1328 of the Code of Civil Procedure is in the nature of a summons, and, construing section 1328 of the Code of Civil Procedure with section 1713 of the same code, the jurisdiction to issue a citation ceases in one year after the petition for revocation was filed. ID. QUASHING OF PREVIOUS CITATION-AMENDED OR ALIAS CITATION -WANT OF JURISDICTION-CERTIORARI.-Where a defective citation is quashed and dismissed by the court it serves no further useful purpose in the proceeding, and the case stands as though no citation had ever been issued; and the court cannot, after the expiration of one year from the dismissal of the defective citation, order an amended or alias citation to issue, and the order and citation issued thereon will be annulled upon certiorari for want of jurisdiction.

APPLICATION in the Supreme Court for a writ of review to annul an order of the Superior Court of the City and County of San Francisco. C. W. SLACK, Judge.

The facts are stated in the opinion of the court.

Jos. F. Cavagnaro and Wm. J. McGee, for Petitioner. The order directing a citation to issue is not appealable, and certiorari is the proper remedy. (Code Civ. Proc., sec. 1068; Moore v. Superior Court, 86 Cal. 495.) The court had lost jurisdiction to issue a citation after the expiration of a year. (Code Civ. Proc., secs. 406, 581, subd. 7, 1328, 1333, 1713.)

Dunne & McPike, for Respondent.

The order was the subject of appeal. (Code Civ. Proc., sec. 956.) A writ of review will not issue in aid of a technical contention. (Hagar v. Board of Supervisors, 47 Cal. 222.) The amendment of the citation was allowable at any stage of the case, the cause of action not having been dismissed. (Code Civ. Proc., sec. 473; Desmond v. Superior Court, 59 Cal. 274; Ketchum v. Superior Court, 65 Cal. 494; Dore v. Dougherty, 72 Cal. 232; 1 Am. St. Rep. 48; Keybers v. McComber, 67 Cal. 398; Polack v. Hunt, 2 Cal. 195; People v. Dodge, 104 Cal. 487.)

GAROUTTE, J.-This is an original proceeding in the nature of an application for a writ of review. One Bacigalupo, the petitioner, was appointed executor of the estate of Bacigalupo, deceased. Some months thereafter certain of the heirs of the deceased filed a petition in the court where such estate was undergoing administration, praying for a revocation of the probate of the will of said deceased, and a citation was issued thereupon to all parties interested to show cause at a certain time why the prayer of the petition should not be granted. No appearance was ever made in answer to the citation, but, upon August 17, 1893, the court of its

own motion vacated, set aside, and discharged said citation. Thereafter, and more than one year subsequent to the filing of said petition, it was dismissed upon motion of this petitioner. Thereafter, upon affidavit showing cause, the court set aside the order dismissing the petition for revocation, and, after reciting wherein the original citation was defective, ordered an amended citation to issue to all parties interested, ordering them to appear and show cause why the revocation of the probate of said will should not be had; and such citation was thereafter issued as ordered by the court.

The citation involved in this proceeding was issued too late. The contest had lapsed, and the petition and citation based thereon should be dismissed. Section 1328 of the Code of Cicvil Procedure provides: "Upon filing the petition a citation must be issued to the executors of the will," etc. This section clearly contemplates that such citation should in no degree be used as an instrument for the purpose of delaying the administration of estates, but rather that it should issue forthwith upon the filing of the the petition petition for revocation. Again, section 1713 of the said code provides: "Except as otherwise provided in this title, the provisions of part II of this code are applicable to and constitute the rules of practice in the proceedings mentioned in this title." A citation in its general character is a summons, and, under this provision of the code, giving section 1328 the widest latitude of construction possible, the power to issue a citation would, beyond all question, cease one year after the petition for revocation was filed. Whether it would cease in less than a year we need not here decide. The fact that one citation was taken out within the year is immaterial, for that citation was quashed and set aside and discharged, and thereafter the case stood exactly as though no citation had ever been issued. After its dismissal it possessed no life. It was a quashed summons, and served no further useful purpose in the proceeding. The citation here under discussion was in no sense an amended citation, but rather a second or alias citation,

and it came too late. At that time the court had no power to make the order upon which it issued.

The order of the court for the issuance of citation, and the citation issued thereon, are annulled, vacated, and set aside.

HARRISON, J., VAN FLEET, J., HENSHAW, J., and McFARLAND, J., concurred.

[No. 18407. Department Two.-July 12, 1895.]

JAMES WHOLEY, RESPONDENT, v. LEONA J. CALDWELL ET AL., APPELLANTS.

RIPARIAN RIGHTS-NATURAL CHANGE OF STREAM-RIGHTS OF LOWER PROPRIETOR.-While a lower riparian proprietor, as against the unwarranted act of an upper proprietor, is entitled to have the water enter his land by its accustomed channels, and to have each channel carry its due amount of water; yet, where a change in the channel of the stream has been caused, not by the act of man, but by natural causes diverting the bed of the stream from his land, he has no right to insist that the water which has flowed upon his land shall always flow upon it, or to enter upon the land of upper riparian proprietors to turn the water back into its former channel, so as to flow upon his own premises.

ID.-SOURCE OF RIPARIAN RIGHTS-LAWS OF NATURE-NATURAL Loss OF FLOW.-Riparian rights draw their support from the laws of nature, and rest upon the maxim adopted by the common law from the civil law, that water runs and ought to run as it was accustomed to run by the law of nature, and they do not rise superior to the laws of nature, and when, by the operation of those laws, the flow is lost the right is lost with it.

APPEAL from a judgment of the Superior Court of Siskiyou County. J. S. BEARD, Judge.

The facts are stated in the opinion of the court.

L. F. Coburn, for Appellants.

The owner of land owns all its products and accessions, and every thing beneath or above it. (Civ. Code, secs. 722, 829.) The change of the stream to a new channel was natural and was caused by the act of God, for which no one is responsible. (Civ. Code, sec. 3526.) There can be no entry by the plaintiff on defendants'

land to change the new channel of the creek to its former channel. (Gould on Waters, sec. 325, note 5; Nevada Water Co. v. Powell, 34 Cal. 109; 91 Am. Dec. 685.) The right of a riparian proprietor is annexed to the soil and extends no farther than the boundary of his estate. (Lux v. Haggin, 69 Cal. 255.) The defendants have the right to the undiminished flow of the water through the new natural channel upon their land. (Black's Pomeroy on Riparian Rights, secs. 7, 8; Gould on Waters, sec. 204; Angell on Watercourses, sec. 95; 3 Kent's Commentaries, 439; Heath v. Williams, 25 Me. 209; 43 Am. Dec. 269-79.) A watercourse running between the lands of A and B which leaves its course and suddenly and sensibly runs on the land of A wholly belongs to A. (Angell on Watercourses, sec. 57, and authorities therein cited; 3 Kent's Commentaries, 525; Gould on Waters, sec. 160, note 5.)

James F. Farraher, for Respondent.

An appropriator, or riparian owner, has the right to have the waters of the stream flow to his ditch or land in its accustomed channels. (Lower Kings River etc. Co. v. Kings River etc. Co., 60 Cal. 410; Heilbron v. Kings River etc. Canal Co., 76 Cal. 12; Lux v. Haggin, 69 Cal. 255; Rigney v. Tacoma etc. Co., 9 Wash. 576; Kay v. Kirk, 76 Md. 41; 35 Am. St. Rep. 408; Black's Pomeroy on Riparian Rights, secs. 8-10; Angell on Watercourses, 7th ed., secs. 96, 142.) This right is in the nature of an easement. (Civ. Code, sec. 801; Ware v. Walker, 70 Cal. 591.) This right carries with it such secondary easements as are essential to its enjoyment. (Angell on Watercourses, secs. 158-60.) When the primary source is a running stream in a well-defined channel its disappearance in one place and reappearance in another will not destroy its character as a stream or justify cutting it off. (Cross v. Kitts, 69 Cal. 222; 58 Am. Rep. 558; Brown v. Ashley, 16 Nev. 311, 317; Hale v. McLea, 53 Cal. 578; Ely v. Ferguson, 91 Cal. 188; Willis v. City of Perry (Iowa, Oct. 22, 1894), 60 N. W. Rep. 728.)