some particular fund, would render the instrument nonnegotiable, but such an agreement subsequently attached, while enforceable between the parties and against an indorsee with notice of the limitation, would not open the instrument to other defenses of which the purchaser had no notice.

[5] So, in the instant case, the acceptance of this note by plaintiff, with knowledge that it was secured by mortgage made subsequent to the execution of the note, doubtless binds the plaintiff by all the restrictions which section 726 of the Code of Civil Procedure places upon actions to collect a debt secured by mortgage, and might have barred the action in its present form had it been pleaded, but does not render the note non-negotiable to the extent that the maker may set up defenses of fraud in its procurement, or failure of consideration, of which the assignee has had no notice.

It follows from these conclusions that the note sued on was entitled to all the immunities of a negotiable instrument in the hands of an innocent holder for value, and it is unnecessary to determine whether as between the original parties the transaction was tainted with fraud either by reason of misrepresentations or failure to comply with the Corporate Securities Act.

The judgment is reversed.

Shaw, C. J., Lennon, J., Wilbur, J., and Shurtleff, J., concurred.

Rehearing denied.

All the Justices concurred.

187 Cal. 43

[Sac. No. 3119. In Bank.-January 4, 1922.]

THE SAN JOAQUIN & KINGS RIVER CANAL & IRRIGATION COMPANY, INCORPORATED (a Corporation), Appellant, v. W. H. WORSWICK, Jr., et al., Respondents.

[Sac. No. 3120. In Bank.-January 4, 1922.]

MILLER & LUX INCORPORATED (a Corporation), et al., Appellants, v. W. H. WORSWICK, Jr., et al., Respondents.

[1] WATERS AND WATER RIGHTS-APPROPRIATIONS-PROTECTION-CONSTRUCTION OF ACTS OF CONGRESS.-Under the act of Congress of July 26, 1866, and the supplemental act of July 9, 1870, providing that wherever by priority of possession rights to the use of water have vested and accrued, and the same are recognized by the local customs, laws, and the decisions of the courts, the possessors and owners thereof shall be maintained and protected therein, the only rights which are confirmed by such enactments are those recognized by the customs, laws, and decisions of the courts in the particular state in which the appropriation is made and in which the land affected lies. [2] ID. RIPARIAN RIGHTS - LOWER APPROPRIATOR.-The rights of a riparian owner in the waters of the abutting stream are not affected by any interference with the waters of the stream made on privately owned land after they pass below the boundaries of such riparian land, and such use below, no matter how long continued, or what may be the nature of the claim of right thereto by the user thereof, in no manner affects the riparian rights pertaining to the land above the place of use and point of diversion. [3] PRESCRIPTION INVASION OF RIGHT ESSENTIAL ELEMENT.-In order to establish a right by prescription, the acts by which it is sought to do so must operate as an invasion of the rights of the party against whom it is set up and afford ground for an action.

[4] WATERS AND WATER RIGHTS-LOWER APPROPRIATION SUPERIORITY OF UPPER RIPARIAN RIGHTS ACTS OF CONGRESS.-Inasmuch as neither the local customs, laws, and decisions of the California courts had ever recognized or upheld the doctrine that water rights

2.

Nature of riparian rights and lands to which they attach, notes, 9 Ann. Cas. 1235; Ann. Cas. 1913E, 709; Ann. Cas. 19150, 1026.

acquired by an appropriation or diversion below on private land would be superior to the riparian rights pertaining to any land above the place of diversion, the conclusion is inevitable that the acts of Congress of 1866 and 1877 neither create such superior rights nor provide for the maintenance or protection thereof. [5] ID. DIVERSION UPON PUBLIC LAND SUBSEQUENT PURCHASE OF UPPER GOVERNMENT LAND · SUPERIORITY OF RIGHTS OF LOWER APPROPRIATOR.-Under the acts of Congress of 1866 and 1870, where a diversion is made on land then belonging to the United States, the right of the appropriator to the water thereby taken is superior to the riparian rights of a subsequent purchaser of land from the United States lying above the point of diversion. [6] PUBLIC LAND-TITLE OF STATE TO SWAMP AND OVERFLOWED LANDS -IDENTIFICATION AND PATENT SUBSEQUENT TO GRANT-RELATION OF TITLE.-Under the act of Congress of September 28, 1850, granting swamp and overflowed lands to the state, full beneficial enjoyment thereof passed to the state at that time subject only to the contingencies incident to identification, and when the lands were identified and a patent there for issued to the state on June 10, 1896, the title so transferred related back to the year 1850, and inured to the benefit of the state and its successors in interest for all purposes, as if the legal title had passed at the date of the act.

APPROPRIATIONS

[7] WATERS AND WATER RIGHTS - DIVERSION ON SWAMP AND OVERFLOWED LANDS SUPERIORITY OF RIGHTS OF SUBSEQUENT UPPER RIPARIAN PURCHASERS.-Where appropriations of water from a river were made in the years 1871 and 1872, and the dams and headgates were situated on tracts of land of the character known as swamp and overflowed lands which were granted by the United States to the state by the act of September 28, 1850, but not patented to the state until June 10, 1896, such appropriations were not superior to the riparian rights of subsequent purchasers of public lands from the United States situated above the place of such diversion, since such swamp and overflowed lands were not at the time of diversion the property of the United States.

[3] ID. DESERT LAND ACT OF 1877- APPROPRIATION OF SURPLUS WATER-LIMITATION TO DESERT LANDS.-The Desert Land Act of March 3, 1877, providing that the right to the use of water shall depend upon bona fide appropriation and that all surplus water over such actual appropriation and use shall remain free for the appropriation and use of the public for irrigation, mining, and manufacturing purposes, subject to existing rights, applies only to desert lands, and does not apply to all the public lands of the United States, so as to make the rights of appropriators paramount to riparian rights.

[9] ID. QUIETING TITLE - ESTOPPEL OF UPPER RIPARIAN OWNERSBURDEN OF PROOF.-In an action to quiet title to water rights by appropriators who had been diverting the water by means of canals and devoting the same to public use for more than forty years, as against upper riparian owners who had permitted the water during the entire period to flow by their own lands without any use thereof, the burden was upon the plaintiffs, in support of their contention that the defendants were estopped, to prove, if material to the estoppel, that they had knowledge, not only of the existence of the canals and the diversion of the water thereby from the river, but also that the same was being devoted to public use, and evidence of extracts from articles published in a newspaper referring to the size of the canal and extent of territory to be irrigated thereby, but not definitely stating the character of the use, was not sufficient to show such knowledge. [10] ID.-PUBLIC USE OF WATER BY LOWER APPROPRIATOr—AcquiesCENCE BY UPPER RIPARIAN OWNER - ESTOPPEL.-An upper riparian owner is not estopped from asserting that his title as such owner is paramount to the right of a lower appropriator, by reason of the fact that he permitted the water to flow by his own land without use and to be diverted by the appropriator for public use, since in order to constitute an estoppel of such a character the person sought to be estopped must have failed to do some act which it was within his power to do and the person claiming the estoppel must have relied on such failure to an extent and for such a period that the subsequent doing of such act would cause him injury.

[11] ID.-PUBLIC USE-PRESCRIPTIVE RIGHT-UPPER APPROPRIATOR.A person, although not a riparian owner, may acquire a prescriptive right as against a public use below by taking water out of the stream above which otherwise would run down to the canals of the public service corporation.

APPEALS from a judgment of the Superior Court of Merced County. E. N. Rector, Judge. Affirmed.

The facts are stated in the opinion of the court.

Edward F. Treadwell and Berkeley B. Blake for Appellants.

Snook & Brown, Chas. E. Snook, George M. Naus and Thos. J. Ledwich for Respondent White & Friant Lumber Co.

R. M. Widney for Respondent John Widney.

Harris & Hayhurst and M. K. Harris for all Respondents, except John Widney and White & Friant Lumber Co.

SHAW, C. J.-In each of the cases above entitled the plaintiff appeals from the judgment. The two cases were begun separately and separate pleadings, findings, and judg ment were filed and made in each case. They were, however, tried together in the court below and the two cases are submitted, so far as the plaintiffs are concerned, upon the same briefs. As the questions are, for the most part, identical, they may be treated together.

In case No. 3119, that of the San Joaquin & Kings River Canal & Irrigation Company Incorporated, the complaint alleges that, under an appropriation and diversion of the waters of the San Joaquin River, made in the year 1871, by the San Joaquin & Kings River Canal & Irrigation Company, the predecessor in interest of the plaintiff, the said company was the owner, from the year 1871 down to the twelfth day of June, 1905, of the right to divert from said river a flow of one thousand cubic feet of water per second; that under a similar appropriation and diversion, made in the year 1897, the said company was the owner, from the last-mentioned year down to the twelfth day of June, 1905, of the right to divert from said river an additional flow of 350 cubic feet per second of the waters thereof; that on the day last mentioned said company sold and transferred to the plaintiff all of its said water rights, together with its canals and works for the diversion and distribution of said water, and that plaintiff has been ever since said transfer, and now is, the owner thereof; that both the plaintiff and its said predecessor were public service corporations and that as such they each, during the time of their respective ownerships thereof, devoted said water to the public use for irrigation of land and other beneficial purposes. It further alleges that during all of this time the defendants were fully aware of the diversion and public use of said water by said plaintiff and its said predecessor, and that the defendants did not object to the same, nor did they, or either of them, divert or use the water of said river until within the last five years preceding the commencement of this action; that during said five years defendants have taken and diverted from the river large quantities of the waters thereof, thereby depriving the plaintiff of the water to which it is entitled as aforesaid, and that the rights of the defendants in said