home to him, should be required to set the statute in motion. In the absence of such evidence, a license is a complete answer and defense to a claim of adverse possession or use, set up by the licensee, and some authorities hold that one who enters under a license cannot afterwards set up an adverse possession. Luce v. Carley, 24 Wend. 451; Blaisdell v. Railroad Co., 51 N. H. 483. A man's title to his land should count for something in controversies of this character.

The judgment and order appealed from should be reversed.

We concur: SEARLS, C.; BELCHER, C.

PER CURIAM. For the reasons given in the foregoing opinion, the judgment and order appealed from are reversed.

(108 Cal. 72)

HARGRAVE et al. v. COOK et al. (No. 19,453.)

(Supreme Court of California. July 11, 1895.) WATERS-RIPARIAN RIGHTS-LIMITATION-DIVER

SION.

1. None of the rights of a riparian proprietor to put water of a stream flowing through or along his land to a legitimate use is lost by

mere nonuser.

2. As a riparian proprietor's right to the use of water ceases when it has flowed past his land, his acquiescence does not give a person diverting such water to a useful purpose a prescriptive right therein against him by operation of the statute of limitation.

3. Under Civ. Code, § 1422, providing that the rights of riparian proprietors are not affected by the provisions of the Code as to ap propriation of water, one who bases his right on appropriation of water over land then part of the public domain acquires no right superior to those attaching to riparian lands which at the time of the appropriation were private.

4. Under Civ. Code, § 1412, providing that the person entitled to the use of water may change the point of diversion if others are not injured thereby, applies only to a change of diversion made on land subject to his easement.

Department 2. Appeal from superior court, Ventura county; B. T. Williams, Judge.

Action by E. T. Hargrave and others against D. C. Cook and others. From an order granting a new trial, plaintiffs appeal. Affirmed.

Blackstock & Ewing, for appellants. Chapman & Hendrick, Barnes & Selby, and Del Valle & Munday, for respondents.

HENSHAW, J. Appeal from the order granting a new trial. Plaintiffs claim ownership in common with some of the named defendants in a certain described ditch, flume, water right, and right of way, by means of which they diverted the waters of Piru river to their nonriparian lands. The ditch was known as the "Hargrave & Comfort Ditch." They averred the adverse claims of defendants, and asked for a decree settling their rights and enjoining defend

ants from further assertion of such or any claims. The defendants answered in accordance with their various claims; some asserting ownership in the ditch and water rights, others declaring upon superior rights by prescription. But in particular the defendant Cook claimed the rights of a riparian owner to the water of the creek, which rights are pleaded as superior to those of the ditch owners.

Stripped of matters unnecessary to this consideration, the following are the essential facts: Defendant Cook is the owner of the Temescal rancho under United States patent issued in 1871. Piru river flows through this ranch, and thence across the northwest quarter of section 20. About the year 1875, section 20 being public land of the United States, plaintiffs' predecessors in interest constructed the ditch, and diverted part of the waters of the river, with the acquiescence of the then occupant of the land; and, as the court found, plaintiffs and their grantors, "for more than fourteen years next preceding the commencement of this suit, have been in the quiet, peaceable, open, adverse, notorious, uninterrupted, and exclusive possession, claiming right and title of said water ditch, with the right to divert and use the waters of said Piru river to the extent of 271 inches, measured under fourinch pressure." The court further found that the predecessors in interest of the defendant Cook in the Temescal rancho did not use any of the waters of said stream except at rare and irregular intervals, and in small quantities; and that they at all times knew that the said Hargrave & Comfort ditch was being continuously used, and that the waters of the stream were being diverted and conducted to lands not riparian to the stream; and that such use, "with their full knowledge and acquiescence," had been continuous for a period exceeding 10 years be fore Cook acquired title to the Temescal rancho and the northwest quarter of section 20. Also it is found that when Cook acquired title he knew of the use of the water by defendants, and "did not object to such use, but fully acquiesced therein, until about the commencement of this suit; and that the rights of plaintiffs were not disputed until long after they had fully acquired a prescriptive right with their co-owners to a part of the waters of the said stream." The waters of Piru river had in the past been little used by the owners of the Temescal rancho, but upon Cook's acquisition of it he began the planting of extensive orchards of fruitbearing trees, until, as he pleads, there were at the commencement of the suit over two millions of orchard and nursery trees de

ndent upon the waters of the Piru river for irrigation. This use of the water by Cook naturally lessened the flow of the stream to plaintiffs' ditch, decreased the supply available for their purposes, and led to this action. The Piru Water Company, an

other of the defendants, took water from the Piru river by means of a ditch higher up the stream than the ditch of plaintiffs. Its ditch, at the time of the action, tapped the stream upon the land of the Temescal rancho, and carried the water over and across it to other nonriparian lands. Its right by prescription was claimed to be prior and superior to the ght of the owners of the Hargrave & Comfort ditch, and this seems to have been conceded; though the precise extent of the right is a matter of controversy which will be considered hereafter.

The court, by its judgment and decree, awarded: (1) The right to Cook to use the waters flowing over the Temescal rancho for domestic uses and purposes and the watering of stock; (2) the right to Cook to 100 inches of water, under 4-inch pressure, drawn off in the Esperanza ditch; (3) the right to the Piru Water Company to an amount not in excess of 285 inches, or so much thereof as may be necessary for the uses accustomed to be made upon certain nonriparian lands; (4) the right to the owners of the Hargrave & Comfort ditch to an amount not in excess of 271 inches, or so much thereof as may be necessary for the uses accustomed to be made, and in accordance with the amounts by the owners respectively accustomed to be used, upon certain described nonriparian lands; and (5) the right to Cook, "after the wants and necessities of the above prior owners have been fully and reasonably supplied," to use the surplus waters for irrigation on the lands of this ranch. By this decree the right of an upper riparian owner to the use of the water for irrigating purposes is made subordinate to the right of a lower appropriator, because at the time the right of appropriation vested the riparian owner was not actually using the water for the designated purpose. This view, appellants contend, is sound. It is the view taken by the court upon trial and expressed by the judge in the following language: "I think the law is well settled in this state that a person diverting and appropriating to a useful purpose the waters of a running stream may acquire an ownership in the right to the use of such waters to the amount he has appropriated to such useful purpose, by operation of the statute of limitation, even against an upper riparian owner, although the point of diversion is without the limits of the lands of such riparian owner, except as against any lawful use to which the riparian owner had or was making of the waters during the time of the creation of the right in the appropriator by operation of statute of limitation." Upon the hearing of the motion for a new trial the court receded from this position, after the consideration of authorities not before called to its attention, and ordered a new trial. Other grounds were urged in support of the motion. Such of them as are deemed necessary will receive

attention, but the principal point inviting consideration is the one above set forth.

The right of a riparian proprietor in or to the waters of a stream flowing through or along his land is not the right of ownership in or to those waters, but is a usufructuary right,-a right, among others, to make a reasonable use of a reasonable quantity for irrigation, returning the surplus to the natural channel, that it may flow on in the accustomed mode to lands below. If his needs do not prompt him to make any use of them, he still has the right to have them flow onto and along and over his land in their usual way, excepting as the accustomed flow may be changed by the act of God, or as the amount of it may be decreased by the reasonable use of upper owners and riparian proprietors. But none of his rights to put the water to legitimate uses is lost by mere nonuser. His rights are not easements, nor appurtenances to his holding. They are not the rights acquired by appropriation or by prescriptive use. They are attached to the soil, and pass with it (Lux v. Haggin, 69 Cal. 255, 10 Pac. 674), and may be lost only by grant, condemnation, or prescription. With any use or diversion of the water after it has passed his land the upper riparian proprietor, having no ownership in, and no longer any rights to, it, would have no concern. (The right to forbid the lower owner from backing the water and flooding his land not being here under consideration.) None of his rights would or could be impaired thereby, and without such an impairment he would. be without injury, and, consequently, without cause for complaint or redress. "His right extends no further than the boundary of his own estate. He cannot complain of the mere facts of the diversion of the water course either above or below him, if, within the limits of his own property, it is allowed to follow its accustomed channel." Lux v. Haggin, supra. The Rancho Temescal was never public land, within the meaning of the United States statutes affecting appropriations of water. The riparian rights of the owners of private land are fully protected by section 1422 of the Civil Code. One who bases his right solely upon appropriation made of waters over land which at the time of the appropriation was part of the public domain acquires thereby no right superior to or in derogation of those attaching to lands riparian to the same stream, which, at the time of the appropriation, were held in private ownership.

The "acquiescence" of Cook and his predecessors in interest in the acts of the owners of the Hargrave & Comfort ditch, as declared by the findings, receives this support from the evidence, and no more: With knowledge of these acts, they never attempted to interfere with them. But before one can acquire a right to the doing of an act in which another so acquiesces, the act itself must amount to an invasion of that other's rights,

and the doing must either have been so long continued as that a prescriptive claim can be supported upon the theory that the acquiescence presupposes a grant, or under such circumstances as will raise an estoppel against the objecting party. But, as the upper riparian proprietor's right to object to any use or diversion of the water below ceased when it had flowed past his boundary, any such use could not work an invasion of his rights, and he was not called upon to protest against it. Thus, in Hansen v. McCue, 42 Cal. 303, the waters of a spring had been appropriated below by plaintiff. The time arrived when defendant, upon whose land the spring was situated, desired to make use of the waters which fed it. A prescriptive right in plaintiff was urged by reason of defendant's long acquiescence in the use, but this court said: "It will be seen at once that McCue, or those from whom he purchased, could, in the nature of things, have no right to complain that the water in the artificial channel, after leaving the spring, was appropriated below by the owners of the Hansen lot. If they had no right to complain in the first instance, we are not driven to the presumption of the grant of an easement to account for why they did not complain." The same principle is announced in Ditch Co. v. Crane, 80 Cal. 181, 22 Pac. 76, where a lower appropriator claimed a right to a certain amount of water against an appropriator whose ditch was higher up the stream. The finding was that plaintiff diverted his ditch full of water "whenever there was water in the stream to fill it," and a right superior and adverse to that of defendant was predicated upon this. But the court said: "If the plaintiff's ditch was simply diverting water which defendants allowed to pass down the stream while the headgate of their ditch was closed, the act of plaintiff in diverting the water thus permitted to pass down could not, in the nature of things, be adverse to the defendants. The latter could not complain, and title by prescription cannot be acquired unless the acts constituting the adverse use are of such a nature as to give a cause of action in favor of the person against whom the acts are performed." To like effect are the cases of Anaheim Water Co. v. Semi-Tropic Water Co., 61 Cal. 192, 30 Pac. 623, and Water Co. v. Hancock, 85 Cal. 219, 24 Pac. 645. No estoppel is pleaded or found, nor would the facts warrant such a finding. The motion for a new trial was properly granted upon the ground considered.

In contemplation of the new trial it is proper to say that the rights of defendant Cook, and of defendant the Piru Water Company, of which Cook is a stockholder, are in issue in this action only to the extent that their rights affect or are affected by the rights of the plaintiffs. As between themselves, their rights are not subject here to determination, excepting so far as may be

necessary to do complete justice to plaintiffs, and excepting so far, as between themselves, they have tendered and joined hostile issues. The limitation upon the use of the water appropriated by the Piru Water Company is not warranted by the evidence. So far as plaintiffs are concerned, the Piru Water Company is prior in time and superior in location, and had acquired the ownership of a given amount of water while that water was used for proper objects, with the right to change the place and purpose of use so long as the change did not injuriously affect the rights of the subsequent appropriators and claimants. Ramelli v. Irish, 96 Cal. 214, 31 Pac. 41; Jacob v. Lorenz, 98 Cal. 332, 33 Pac. 119; Davis v. Gale, 32 Cal. 26; Pom. Water Rights, § 69.

Upon the question of the right of the owners of the Hargrave & Comfort ditch to extend it five or six hundred feet over the northwest quarter of section 20, now the land of Cook, the better to facilitate the obtaining of their water, we do not deem it proper, upon this appeal, to do more than point out that, while an appropriator of water upon government land retains his rights when the land passes into private ownership, by virtue of the confirmatory statutes of the United States (14 Stat. 253; 16 Stat. 218), and while in the exercise of these rights he may change the point of diversion to another place upon the servient tenement, he is nevertheless limited in so doing to the exigencies of the situation, and has no right to make such change arbitrarily and at will. He may do so when, under certain circumstances, it is required to enable him to make the amount of water to which he has ownership, but then only when "others are not injured by the change." Civ. Code, § 1412. His rights are the rights of the grantee of an easement, and extend, in the matter of changing the point of diversion. no further than the boundaries of the servient tenant; and even when entering upon this he is bound only to make reasonable changes with reasonable care, and also to repair, so far as possible, whatever damage his labors may have occasioned. Gale & W. Easem. 235. As to lands other than those subject to his easement, and as to other claimants and owners, he can make no change at all which injuriously affects them or their rights. The order appealed from is affirmed.

We concur: TEMPLE, J.; MCFARLAND, J.

(108 Cal. 68) MESNAGER v. ENGELHARDT et ux. (No. 19,455.)

(Supreme Court of California. July 11, 1895.) INJUNCTION-INCONSISTENCY OF FINDINGS.

In an action to restrain defendant from interfering with plaintiff in laying pipes over defendant's land, and in construction of a dam. the court found that plaintiff had a right of way for conducting water across defendant's land,

but not for the construction of a dam; that defendant had interfered with plaintiff in the enjoyment of his easement, and unless restrained from interfering with him in laying water pipes along the right of way, and "rebuilding his dam at the point of diversion," great injury will be done plaintiff's crops. The decree restrained defendant from interfering with plaintiff in laying the pipes, but adjudged that plaintiff had no right to build a dam. Held, that the decree could not be reversed on the ground of inconsistency in the findings.

Department 2. Appeal from superior court, Los Angeles county; J. W. McKinley, Judge. Action by George L. Mesnager against George Engelhardt and wife for an injunction to restrain defendants from interfering with plaintiff's construction of a dam, and laying of pipe on a right of way over defendants' land. From the judgment on the merits, and an order denying a new trial, plaintiff appeals. Affirmed.

Horace Bell, for appellant. Will D. Gould, for respondents.

HENSHAW, J. The action was for an injunction. Plaintiff alleged that he was "the owner of a right of way, and in particular for the purpose of laying a pipe line and the erection of a dam, and the construction of ditches, and for the doing of any work necessary for the diversion of the water flowing in the Verdugo creek, over the following described land." The land is then described. Next follows a description of the "particular right of way" claimed, which commenced at "the point where the dam constructed by the plaintiff in 1892 was situated," and extends over and across the land of defendants to the point where "said pipe line constructed by plaintiff in 1892 crossed the northeasterly line of defendants' land." Plaintiff then avers the interference of defendants, their preventing him "from entering upon said land, and from using his right of way for the purposes aforesaid," and his damage, and prays "that his right of way over the land described in his complaint, and in particular for ditches, dams, and pipe lines, for the purpose of diverting the water from the said Verdugo creek, be declared good and valid forever," and for a perpetual injunction. The defendants, for answer, made denial, and the facts as disclosed by the evidence or found by the court proved to be that the land upon which the dam was to be constructed and the ditches dug, and over which the pipes were to be laid, was the separate property of the wife of defendant George Engelhardt. In 1891 the husband, without authority from his wife, attempted to convey by instrument in writing to plaintiff the right "to build a dam and make a ditch in the Verdugo creek, and on my north line, as near as possible from the northeast corner, about two hundred feet, more or less, providing said dam and ditch will not interfere with any private entrance." In April, 1892, the Engelhardts, husband and wife, granted to plaintiff "the right of way over their land

for all purposes, and also the right to use a certain water ditch, now existing on the place, to run his own water along with theirs, or to build new ditches, and so forth." Under these instruments plaintiff assumed the right to construct a dam upon defendants' land, obstructing the natural flow of the creek waters, and to lay a pipe line to conduct these waters to his lands; and in 1892 entered upon the lands, and, with the assistance of George Engelhardt, built a dam and laid his pipe line at an expense of $2,000. The dam was injured by the floods of the following winter, and in 1893 plaintiff again attempted to enter upon defendants' land to relay his pipes and rebuild the dam, when he was forcibly prevented by defendants.

Mrs. Englehardt testified that her husband had no authority to execute the first attempted grant to plaintiff, and that she did not know of the dam until after it was constructed. She declared that she did not object to plaintiff's digging a ditch or laying pipes across her land to take his own water from the creek, but did object to his building a dam and taking her own water from her property. Under this evidence plaintiff would not be entitled either to build such a dam on defendants' land or to appropriate any of the waters of the creek rightfully be longing to defendant Jesus de Engelhardt, and the court so concluded. The husband was not shown to be the agent of the wife, nor was she bound to allow the maintenance of a dam against the construction of which she protested, nor the appropriation of her water by means of it. The difficulty arises solely in construing the findings, which it is contended are inconsistent with themselves, do not support the conclusions and decree, and do entitle plaintiff to the relief sought. It will be noticed that the complaint does not in terms aver a right in plaintiff by grant, appropriation, or prescription, to divert the waters of the creek upon defendants'. land, but somewhat curiously pleads a light of way for the doing of any work necessary for such diversion. Plaintiff is the owner of a tract of land bordering upon the creek above the lands of the Engelhardts. He diverted the water upon this upper land, and carried it by ditch across defendants' land onto his lower tract. The easement granted gave him the right to construct new ditches or pipe lines for this purpose, but under it he wrongfully asserted the right, as has been seen, to dam the creek upon defendants' land, and make there a new point of diversion. By the decree he was given all to which he was justly entitled.

The alleged ambiguity or inconsistency in the findings is not sufficient to justify a reversal of the case. The court first finds, with much particularity, the right of way and the nature and extent of the easement to which plaintiff is entitled. It is a right of way for the purpose of transporting plaintiff's water across defendants' land, and

uot a right of way for the construction of a dam. The defendants are found to have interfered with plaintiff in the enjoyment of his easement. And it is then found that plaintiff's crops will suffer great damage “unless defendants are restrained from further interfering with and obstructing plaintiff, as aforesaid, in relaying his said water pipes along his said right of way, and rebuilding his dam at the point of diversion aforesaid." By the decree defendants are enjoined from interfering with the plaintiff's right of way for the laying of pipes and construction of ditches, and plaintiff is adjudged to have no right to build any dam or do any work for the purpose of diverting the water of the creek upon defendants' land. The inconsistency, it is charged, is found in the italicized portion of the finding above quoted. while plaintiff and his crops suffered from the interference of defendants with his acts, some of which were legal and others illegal, and while these acts are all grouped and collectively declared against, it plainly appears that, so far as concerns the construction of the dam, the interference caused damnum absque injuria, since plaintiff had no just cause of complaint against it.

The judgment and order are affirmed.

But

AND CONTRIBUTORY NEGLIGENCE.

1. An employé of a street railroad company, who was crushed between cars passing on the switch and main tracks while standing there to change the switch, is not guilty of contributory negligence where it appears that this position is the one usually taken, and not in itself a place of peril.

2. Under Civ. Code, § 1970, providing that an employer shall not be liable for injuries to an employé through the negligence of a coemployé unless he has neglected to use ordinary care in the selection of such coemployé; and section 1971, providing that an employer must in all cases indemnify his employé for loss caused by the former's want of ordinary care, -in an action by an employé for injuries resulting from the negligence of plaintiff's coemployé, where it was shown that defendant used due care in selecting the coemployé, plaintiff cannot recover without showing that such coemployé was in fact incompetent, and that defendant had knowledge thereof, or that his reputation was such that defendant should be presumed to have had knowledge of his incompetency.

3. In an action against an employer for injury resulting from the incompetency of a fellow servant, where it is shown that defendant exercised ordinary care in the selection of such servant, plaintiff cannot recover merely on proof of his reputation for recklessness and carelessness, without also proving that he was in fact reckless and careless.

Department 2. Appeal from superior court, Los Angeles county; W. H. Clark, Judge. Action by W. H. Gier against the Los An

HENSHAW, J. Plaintiff, a conductor upon one of defendant's electric cars, was injured under the following circumstances: He had stopped his car and gone ahead to turn a switch to permit the passage of his car from one track to the other. He turned the switch, standing, while doing so, in the V-shaped space made by the switch track and the main line. Another car, coming up, had stopped on the main line, just behind him. At this moment his own car was moved forward by its motorman. The plaintiff was caught between the cars in the wedge-shaped space, crushed, and injured. This action is for a recovery on account of his injuries, and to maintain it he pleads the negligent and careless act of the motorman, --admittedly a fellow servant,-and a lack of ordinary care upon the part of defendant in selecting and hiring the culpable employé. Some charge is also made of defective and inadequate switching apparatus, but this contention seems to have been abandoned. In any event, the record does not disclose any evidence in support of it, nor is argument addressed to maintain it. Some evidence was introduced tending to prove that the plaintiff might with safety have stood in another place and turned the switch point, and that he voluntarily selected a dangerous spot from which to perform the act; but his position, it is shown, was the usual one, and not in itself a place of peril. No contributory negligence can be predicated upon that fact. Taylor v. Railroad Co. (Tenn.) 27 S. W. G63.

There is likewise conflicting evidence upon the question whether or not plaintiff ordered his motorman to move forward, but the verdict of the jury upon this disputed fact will not be disturbed. The evidence, however, does abundantly establish that plaintiff suffered through the carelessness of the motorman in sending his car ahead under such circumstances as must inevitably bring death or serious injury to the plaintiff, and upon this proposition not the least convincing testimony comes from the motorman himself But herein it is to be noted that the act was not one evincing incompetency, employing the word strictly to denote a lack of skill or ability to use appliances or perform a duty in a workmanlike way, but was a single and signal exhibition of carelessness or recklessness,-such, however, as the most competent man might at some time be guilty of.

Nor does the evidence of plaintiff's witnesses establish, or seek to establish, incompetency, as the word is here used. It is addressed to establishing the propositions that