PER CURIAM.

The court below granted the motion for a new trial, upon the assumption that it appeared in the settled statement that finding of fact had not been waived. In this it was mistaken. The only allusion to that matter is found in the eleventh assignment of error, in which the fact of non-waiver is assumed as a basis for stating the alleged error therein set forth.

There is no statement in the body of the bill of exceptions that findings had not been waived, and the fact of such nonwaiver is not otherwise, or in any manner, made to appear in the record.

There are no specifications of the particulars in which the evidence is insufficient, and there was no error of law committed at the trial, excepted to by the defendant, such as would entitle him to a new trial.

AMADOR AND SACRAMENTO CANAL CO., APPELLANT.*

AMENDMENT-LIMITATIONS.-In an action of trespass, an amended complaint was filed for the purpose of including a portion of a tract inadvertently omitted from the description contained in the original complaint Held, the Statute of Limitations continued to run, as to the omitted land, during the interval of time between the original and the amended complaints.

From the Sixth Judicial District, Sacramento County. Action to recover $15,000 damages by reason of injuries. to land owned and cultivated by the plaintiff, caused by the washing down of sand, gravel, mud, tailings, and other debris from defendant's hydraulic mining grounds. The defendant

*The transcript in this case contains 777 pages, 2,322 folios, and weighs six and a half pounds. There were, at the trial, about fifty witnesses examined.

commenced mining in 1871, and continued until 1875. It used from four to six hundred inches of water day and night, and the tailings were carried off down the hill toward plaintiff's land by means of flumes, one of which reaches across the line of the land in question; the channel of a creek running through the land was filled up; a dam and canal built by plaintiff to prevent further injury were rendered useless by the accumulated tailings, and finally became buried out of sight; fences were covered and destroyed, and the body of his bottom land was filled with a bed of stones, gravel, and mud, from two to four feet deep.

The original complaint was filed March 30, 1875, counting upon the injuries committed from March 30, 1872. On the 3d of January, 1877, and after the action was called for trial, an amended complaint was filed, upon which the action was tried. The amendment went only to the description of the premises, and was made to bring within the description a part of the injured premises which had been inadvertently omitted from the original complaint. The land formed one entire tract dating from the acquisition of it by plaintiff, but originally constituted minor ranches, one of which was designated as the Clark Ranch. This original complaint omitted to include the Clark Ranch within the description. To the complaint as amended, the defendant plead the Statute of Limitations, (Code of Civil Procedure, 2 338, Subd. 2.), and requested the court to instruct the jury in effect that as to the land embraced in the amendment, the plaintiff could not recover damages for any injuries prior to January 1, 1874, which instruction the court refused to give. The jury found for the plaintiff and assessed the damages at $4,000. Defendant appealed from the judgment upon the exceptions taken during the trial.

W. C. Belcher, Haymond & Coggins, and Benj. Bullard, Jr., for appellant.

H. O. Beatty, Edgerton, Tubbs & Cole, and A. P. Catlin, for respondent.

PER CURIAM.

Among other instructions asked by the defendant and refused by the court, was the following:

"The jury, in estimating all damages done to the land known as the Clark Ranch, must exclude from consideration any damage or injury done prior to the first day of January, 1874. Whatever injury was done before that time can not be recovered in this action."

The original complaint was filed on the 30th day of March, 1875, but in that complaint no cause of action founded upon injuries alleged to have been done to the "Clark Ranch" was set forth. In the amended complaint filed January 3d, 1877, the injury alleged to have been done by the defendant to that ranch was for the first time counted upon and damages therefor claimed. The amended complaint, in so far as it counted upon the injury done to that ranch, was the introduction of a new cause of action and against which the defendant had the right to plead, and did plead, the Statute of Limitations. In view of this plea upon the record, the plaintiff in adducing the evidence in support of his case as to the "Clark Ranch," should have confined himself to proof of injuries, if any, done since the 3d day of January, 1874, and had he done so the giving of the instruction refused, would not have embarrassed the jury in finding a verdict for such damages as had been shown. However this may be, the instruction as asked was correct in point of law, and should have been given to the jury.

Judgment and order reversed and cause remanded for a new trial. Appellants to recover but one-half of the costs upon this appeal.

[No. 4,790.]

[Filed April 29, 1878.]

OAKLEY, PLAINTIFF AND RESPONDENT,

VS.

STUART ET AL., DEFENDANTS, AND MILLER, INTERVENOR AND APPELLANT.

SIXTEENTH SECTIONS-ALPLICATIONS TO PURCHASE.-Applications to purchase six

teenth and thirty-sixth sections may be filed immediately after the actual survey-the survey in the field-approved by the Surveyor-General.

SAME.-As a question of priority, the first applicant, after an approved survey in the field, is entitled to the certificate of purchase when the land is accepted and the Register notifies the State office thereof.

Appeal from the First Judicial District, Santa Barbara County.

This case commenced in March, 1875, is a contest for half a sixteenth section in Santa Barbara County; referred by the Surveyor-General to the District Court under Political Code, 23414.

The land was surveyed in the field-the township lines in 1854, the section lines January, 1861. This survey was approved by the U. S. Surveyor - General on the 9th of April, 1861, and an approved map thereof filed. The defendant, Linebaugh, in January, 1871, filed an application to purchase in due form, and, having obtained a certificate of purchase afterward, assigned the same to Miller. On the 11th of April, 1873, the plat of the survey was filed in the U. S. Land Office in San Francisco. Defendant Stuart, on April 12, 1873, the next day after the filing of said plat in the U. S. Land Office, filed an application in due form for the purchase of the same land, and in his application stated that there was no occupation of said lands adverse to any he had. Subsequently, September 27, 1873, Stuart assigned his certificate to Miller. At one time, also, Cosgrove & Byrne had filed for the whole of the section, but afterward filed an abandonment thereof. The plaintiff, Oakley, made an application for the land on May 6, 1874, in due form, and, upon his demand, the matter was referred to the District Court.

The findings show that the land was vacant in the spring of 1872; that Oakley, the plaintiff, used a part of it for pasturing stock. Afterward Oakley went into possession of a large portion of the tract, and between January 1st and April 1st, 1873, ditched and fenced it, cultivated and sowed grain, and continued to occupy it until the commencement of this suit. Miller, the intervenor, went into the possession of a portion of the premises in the fall of 1873, claiming under his assignments of the certificates of purchase issued to

Linebaugh and Stuart, and continued in possession and cultivation up to the present suit.

The court below (Murray, J.) held: "Were this question. res integra, I should follow the construction of the State Land Office, which entertains applications as soon as the actual survey has been made and approved. But I am constrained to rule that the case of Rooker vs. Johnson (49 Cal. 3), is conclusive against the validity of Linebaugh's application, inasmuch as that decision determines that the survey is incomplete and the land not subject to application for purchase, until the filing of the approved plat in the U. S. District Land Office. Under the authority of Wood vs. Sawtelle (46 Cal. 389), I further hold that the application of Stuart was also void for the reason that there was adverse occupation in Oakley at the time of Stuart's filing."

Judgment was entered for the plaintiff, Oakley. Miller took this appeal.

J. F. Stuart, in propria persona, R. M. Dillard, E. Fawcett, Gray & Haven, H. H. Haight, and E. R. Taylor, for appellant.

W. C. Stratton, for respondent.

PER CURIAM.*

The only material question is the validity of Linebaugh's application.

The statute provides: "Whenever a resident of this State desires to purchase any portion, not less than the smallest legal subdivision, of the 16th or 36th section of any township, which has been surveyed by authority of the United States, he shall make an affidavit, etc."

It would seem to have been the the practice of the State Land Department, since the passage of the law, to treat as. properly filed, applications filed at any time after survey in the field, and the approval thereof by the Surveyor-General. This practice accords with the natural meaning of the words

* A former opinion of the court was delivered by Mr. Justice Rhodes on the 11th of December. 1875, Mr. Justice Crockett specially concurring, and with him concurred Justices McKinstry and Niles. In that decision the judgment below was affirmed. A rehearing was subsequently granted, resulting in a reversal of the judgment, but with two dissenting members of the court.