action was brought, both by its terms and its character, was assignable. The ditch which was to be constructed by the mining company was to be paid for by the defendant. It was, according to the pleadings, delivered to the defendant when completed, and possession thereof has ever since been retained by such defendant. The water run through this ditch to the quartz-mill was to belong to defendant, after being used to run the machinery. In case work was abandoned at the mine, defendant was to pay for the construction of the ditch out of the proceeds of water sold therefrom. These facts, taken together, seem to indicate that defendant owned the ditch, and that neither the structure nor the water to be run through it bore any such relation to the mill or mine as to make them, or either of them, an appurtenant thereto. "A thing, to be appurtenant to another, must. be of a different and congruous nature, such as an easement or servitude, or some collateral incident belonging to and for the benefit of the land." STORY, J., 1 Sum. 21; Civil Code, § 662. Here the ditch, and the water which it conveyed, were not the property of the owners of the mill or mine. The water supply of a mill will ordinarily pass with a conveyance of the mill, but, in order to do so, it must belong to the mill,-must be the property of the owner thereof, and not of another. We may add that the question as to whether the water supply did or did not pass to the intervenors as an appurtenant of the mill is one that cannot affect the defendant in the manner claimed by it. The court below found that it did not pass, and rendered judgment against the intervenors, from which judgment they have not appealed. They are concluded by the action of the court from asserting any claim to the water under the contract in question.

The motion for a nonsuit was properly denied. The additional questions of law presented by the record cannot, we think, affect the result, and the judgment and order should be affirmed.

BY THE COURT. For the reasons given in the foregoing opinion the judgment and order are affirmed.

(67 Cal. 474)

LOWDEN v. FREY. (No. 9,798.)

Filed September 25, 1885.

1. FINDINGS CONFLICTING EVIDENCE.

Where the evidence on a trial is conflicting, findings based thereon will not be disturbed on appeal.

2. SAME-EVIDENCE-JUDGMENT AFFIRMED.

Findings and evidence reviewed, and he'd, that plaintiff was not entitled to judgment, and judgment of court below affirmed.

3. APPROPRIATION OF WATER-RIGHT, WHEN LOST.

A water-right, under appropriation for mining purposes generally, is not lost by exhaustion of the mine for which it was appropriated.

Commissioners' decision.

Department 1. Appeal from superior court, Trinity county.
W. J. Tinnin and Burch & Lowenberg, for appellant.

C. E. Williams, J. W. Phillbrook, and Hatch & Chadborne, for respondent.

SEARLS, C. This is an action to fix and determine by a decree of court conflicting rights of plaintiff and defendants to the water of Grass Valley creek and its tributaries, to enjoin defendants from interference with the water adjudged to belong to the plaintiff, and to recover damages. Plaintiff's grantors, in 1850, located what is now known as the Lowden ranch, situated in Trinity county, and through which a stream known as "Grass Valley Creek" flows. The ranch was situated upon public lands of the United States. In 1852 a ditch was constructed from the creek, and the waters thereof diverted and conducted through said ditch to the ranch, and there used for purposes of irrigation. In 1854 defendant, Frederick Frey, and others constructed a ditch from Grass Valley creek, at a point above that of plaintiff, and extending to Ohio Flat and other points on Trinity river, for mining purposes. This last ditch is known as the "Ohio Flat Ditch."

The main issue at the trial was as to the extent of plaintiff's prior right to the water of said creek. Plaintiff had a decree adjudging her prior right to the use of 120 inches of water measured under a four-inch pressure, from which decree, and from an order denying a motion for a new trial, she appeals.

The contention of appellant is that she was entitled to a decree establishing her right to a much larger quantity of water than that adjudged her by the court, and that she was entitled to damages for past diversion of water by defendants. The prior right of plaintiff to 40 inches of water is admitted by the pleadings.

At the trial it was stipulated in open court by counsel for the respective parties that "the evidence be confined to the issue upon the quantity of water appropriated by and to which each of the respective parties is entitled, and to the question of damages; and that all other issues, if any, raised by the pleadings be ignored."

The testimony as to the extent of plaintiff's prior right to the water involved as substantial and radical a conflict as can well be imagined. It ranged, according to the statements of different witnesses, from 36 inches to 1,600 inches.

A certain ditch known as the "Skinner Ditch," and having a large capacity, is described by some of the witnesses, and its very existence ignored by others. This marked conflict may be accounted for in part by the fact that the witnesses were detailing from memory facts and circumstances occurring 30 years prior to the time at which they were called upon to testify.

Again, the tendency of all water-ditches is to increase in size and capacity by age. The constant erosion of their banks by the current

of the water flowing through them tends in some degree to their enlargement. The fact that debris deposited from this source, and in many instances brought from other sources and deposited in such ditches, is necessarily removed in cleaning them, and is usually deposited upon the lower bank of the ditch, thus imperceptibly increasing its carrying capacity. All these circumstances are, or may well be, overlooked by honest witnesses who only remember that in their observation a given ditch has never at any time been specially enlarged, and when coupled with the fact that the increase in size is so gradual as not to attract particular attention, goes far towards explaining the very great discrepancy usually observed among witnesses when testifying as to the capacity of ditches of long standing.

With this substantial conflict of testimony, and involving, as it does, so many elements of uncertainty, we are not at liberty to disturb the findings of the court below, by which the conclusion was reached that plaintiff had a prior right to but 120 inches of water.

It is objected by plaintiff that there is a conflict between the seventh and eighth findings of the court, and that the latter is in direct conflict with the testimony. The seventh finding is to the effect that defendants threaten and will continue to divert the water from said (Grass Valley) creek in derogation of plaintiff's right to 120 inches of the first flow thereof, etc. The eighth finding is that plaintiff has sustained no damage by reason of the acts of the defendants. The court had previously found, in its sixth finding, that the defendants had always permitted 120 inches of water to flow to plaintiff's ditch when the creek afforded that quantity, except from July 14 to August 14, 1883, when they permitted but 40 inches so to flow.

The testimony of Bates, a witness for plaintiff, shows that during this same month, from July 14 to August 14, 1883, 123 to 125 inches of water actually flowed in the ditch of plaintiff, which was a larger quantity than the court finds it was entitled to receive, for which reason, as we suppose, it was found plaintiff was not damaged.

The apparent discrepancy in the finding that defendants only permitted 40 inches of water to flow during the month indicated, while plaintiff was, in fact, using a much larger quantity, is explained by the testimony of defendant Frey and others, from which it appears that while defendants denied the right of plaintiff to over 40 inches of water, they in practice allowed a larger quantity to flow, when they were not using it themselves, and that plaintiff was in the habit of taking it, without reference to the claim of defendants. In other words, the defendants denied plaintiff's right to any quantity of water exceeding 40 inches, and sought to deprive her of all above that quantity; hence the sixth and seventh findings. They did not succeed in depriving her of the water, as they sought to do, and she was not damaged; hence the eighth finding.

The findings are not as clear and explicit as they might have been, but we cannot see that injustice has been done the plaintiff. The v.8p.no.1-3

decree in plaintiff's favor entitled her to costs of the action; therefore the question of her right to nominal damages was of no practical importance in the case. Chambers v. Frazier, 29 Ohio St. 362.

The testimony tends to show that the appropriation of the water. by defendants and their grantors was for mining purposes generally, to be used at various points. Under such circumstances, the position of plaintiff, that "the right to the use of water for mining purposes ceases with the exhaustion of the mine for which it was appropriated," has no application.

We find nothing in the errors of law assigned to warrant a reversal of the judgment or order denying a new trial, and are of opinion they should be affirmed.

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

BY THE COURT. For the reasons given in the foregoing opinion. the judgment and order are affirmed.

(67 Cal. 483)

AXTELL V. GERLACH.

(No. 9,644.)

Filed September 25, 1885.

1. TAX SALE-VALIDITY-UNLAWFUL CHARGE.

If, at a tax sale, property is sold for a greater sum, by one dollar, than was authorized by law, the tax sale is void.

2. SALE FOR DELINQUENT TAXES-VALIDITY OF CHARGES.

The California act of 1880 for the protection of lands from overflow, other than swamp lands, does not authorize charges of 50 cents for preparing a delinquent list, or 50 cents for certificate of sale.

3. TAX DEED-VALIDITY-INJUNCTION TO RESTRAIN MAKING.

Where a tax sale is void because made for a sum greater than that authorized by law, an injunction will lie to restrain the making of a deed thereon. 4. TAX SALE-VOID CERTIFICATE-ACTION TO QUIET TITLE INJUNCTION.

An action to quiet title against and to cancel a void certificate of sale for taxes may be maintained, and if in such action an injunction be granted against the making of a tax deed, the judgment will not be reversed. Code Civil Proc. Cal. § 738.

Commissioners' decision.

Department 1. Appeal from superior court, San Joaquin county.
J. C. Campbell and D. S. & S. L. Terry, for appellants.
J. B. Hall and W. L. Dudley, for respondents.

FOOTE, C. Action to quiet title. Appeal from a judgment made therein. The certificate of sale issued by the tax collector was properly ordered to be canceled. The sale was void, because the land was sold for a sum greater, by one dollar, than was authorized by law. Harper v. Rowe, 53 Cal. 236; Treadwell v. Patterson, 51 Cal. 637. There was nothing in the law which imposed a tax in invitum upon property which gave the right to charge this additional sum, viz.: 50 cents for cost of preparing a delinquent list, and 50 cents for cost of certificate of sale. See "Act to provide for the protection of lands from

overflow other than lands recognized as swamp lands," (St. 1880, c. 128, p. 227.) These two charges were not authorized as a part of the manner in which the sale was ordered to be made. Section 9 of of said act, and Bucknall v. Story, 36 Cal. 67. And, further, that act itself, in section 11, makes express provision for the payment of the tax collector, and does not seem to contemplate that the landowner, or his property, shall be responsible therefor. And the purchaser was not entitled to a decree ordering the land-owner to reimburse him for money paid out. Harper v. Rowe, supra.

It is contended that the certificate of sale being void upon its face, the deed, the making of which it was sought to enjoin, would be void on its face, and therefore an injunction ought not to have been granted, as no cloud on plaintiff's title would thereby appear. Section 3776, Pol. Code, does not require that the certificate of sale shall specify the particulars of the "amount paid," or the "amount of the assessment." Non constat, therefore, that the deed would necessarily do so if executed; and if it did not, then evidence would be required de hors the recitals of the deed to ascertain the illegality of any of the items to collect which the sale was made, and a cloud would thus be cast on the title. But upon the supposition that the deed itself, when executed, may properly show the purchaser's title to be void, and not actual cloud rest on the plaintiff's title, yet under section 738, Code Civil Proc., this action to cancel the certificate is a proper one. Hearst v. Egglestone, 55 Cal. 336; Harper v. Rowe, supra; People v. Center, 6 Pac. Rep. 481.

The injunction is for the purpose of making effective the judicial determination of the invalidity of the defendant's adverse claim "of an estate or interest in" the plaintiff's land; and, as a means to attain that end, and prevent further controversy, if the deed should be executed and delivered, the injunction was granted, and the judgment. should not be reversed on that account. Brooks v. Calderwood, 34 Cal. 563.

It would serve no useful purpose to determine other questions raised in the case, and we are of opinion that the judgment of the court below should be affirmed.

BY THE COURT. For the reasons given in the foregoing opinion the judgment is affirmed.