768 not to develop it. As plaintiff is not entitled to an injunction, it is not necessary to determine whether the court could ascertain the amount of water needed by the city, and limit its right to such necessity. If this could be done at all, it is evident that it would be in a very liberal spirit. The wants of a city naturally fluctuate, and on an emergency may be greatly increased beyond ordinary wants. A court would hardly say that where it can a city may not provide for such emergencies, even though they are very unlikely to occur. This trouble does not exist, however, when it is confessed, as here, that the motive of enlarging the ditches to take more water is for the purpose of selling it to irrigate outside lands. From what has been said it would seem to follow that the city cannot do that. The city was allowed, over the objection of plaintiff, to prove that it was matter of common reputation, more than thirty years ago, that Los Angeles claimed the water, and had the control of it. It is contended that the city could not thus prove that it had title to the water. That the claim of the city is based either upon appropriation, which must be shown by acts, or upon the usages and laws of Spain and Mexico, of which the courts take judicial notice, and which are not matters of proof. The effect of these upon the right of the city to the water must be determined by the court, and cannot be shown by the opinions of witnesses or of the general public. Admitting appellant's position here, it is difficult to discover how it has been injured, but I do not understand such to have been the purpose of the evidence. It was proposed to show that the city had used the water under a claim of right. It was proper to show this, and, as it was a matter of general interest, and, as to a portion of the time, of ancient date, and the declarants dead, it could be established by proof of the prevailing current of assertion. 1 Greenl. Ev. 128. "We come now to the case of defendant Ames. Ames owns forty acres of riparian land immediately below the city, and immediately above the riparian lands of the plaintiff. He had erected a dam in the river, just above his line, on the lands of the city, but with the consent of the city, and proposes to divert 600 inches of water, miners' measure, for the purpose of selling the same to nonriparian owners, using none on his own land. It was adjudged that neither Ames nor plaintiff had any right to any of the waters of the river which they could assert against the city, but when the city permits any water to flow past, if it be all developed or artificial water, Ames may take it all. When it is mingled with the natural flow in the stream, it must be regarded as though it were the natural flow. Then, when there is only sufficient water to supply the uses required for the riparian lands (Cal. of plaintiff and defendant Ames, plaintiff may have one-fifth of such water and Ames four-fifths. When there is more than is required for such needs, Ames may first take one hundred inches, and then plaintiff may take two thousand inches, and Ames may then take the remainder, if any there be, and both plaintiff and Ames are perpetually enjoined from taking any water from the stream except as permitted in the decree. This decree is not supported by the facts found, or by any facts which could have been found, from the evidence, and is inconsistent with the law applicable to such cases. As we have seen, there is no evidence which tends to show that there is any developed or artificial water in the stream. The next disposition professes to protect the riparian rights of the parties, but is utterly inconsistent with such rights. Under that doctrine. Ames would not be entitled, as against plaintiff, to four-fifths of the water, nor to any other quantity, except when it was required for cerain uses; nor would he then be permitted to take more than such uses required, and possibly not even that much. And then, how, consistently with the doctrine of riparian rights, could Ames take one hundred inches of water, not required on his riparian lands, or the further indefinite quantity, after plaintiff has been allowed to take two thousand inches? What right, under the findings or evidence, has plaintiff made out to two thousand inches of water under any circumstances? This shows idea of the doctrine of riparian rights. If a very loose that doctrine be the true one, as this court has repeatedly held, the riparian owner is entitled to the continuous flow of the stream as part and parcel of his estate, and not as an easement or incorporeal right issuing out of land. He does not own the corpus of the water, but incident to his riparian right is the right to appropriate a certain portion of it. It is only, I think, by some species of appropriation that one can ever be said to have title to the corpus of the water. The right of the riparian owner is to the continuous flow, with a usufructuary right to the water, provided he returns it to the stream above his lower boundary, and the right, as I have said, to make a complete appropriation of some of it. But, as our decisions stand, an appropriator cannot acquire a right to any of the waters of a stream to the prejudice of a riparian owner, by any use, except under the statute of limitations. I think some material findings are not sustained by the evidence, and that ings, and recommend that the judgment and the judgment is not justified by the findorder be reversed, and a new trial had." For the reasons given in the foregoing opinion, the judgment and order appealed from are reversed, and a new trial granted. MCFARLAND, J. I concur in the judgment and in the opinion adopted by the court. I desire to say, however, that the case of Modoc Land & Live-Stock Co. V. Booth, 102 Cal. 151, 36 Pac. 431, cannot be taken as authority for the proposition that a riparian proprietor on an ordinary natural stream cannot, by injunction, restrain an unlawful diversion of the water of the stream, unless he can show actual special damage other than such as thus legally arises from a deprivation of the substance of his estate. To so interpret that case would be to make it overrule every de cision of this court upon the subject from the organization of our state government to the present moment. All the Modoc Case decides is that to use the language in the opinion in that case, taken from Pomeroy: "Unless the flow of a stream to the land of a riparian proprietor has been appreciably or perceptibly diminished, he is not entitled to an injunction," etc. Of course, with respect to a river of the size of the Mississippi or the Sacramento, no probable diversion would ever perceptibly diminish the flow of the current. Illustrations drawn from supposed riparian rights in such rivers are scarcely more pertinent than would be illustrations from supposed riparian rights on the Gulf Stream. In the case at bar, however, as stated in the opinion, the injunction "would not have the effect to cause the water to flow over or along its riparian land, as it was accustomed to flow." (113 Cal. 503) CULLEN et al. v. GLENDORA WATER CO. (No. 19,360.)1 (Supreme Court of California. March 11, 1895.) IRRIGATION DISTRICTS CONSTITUTIONAL LAW DESCRIPTION -- CONFIRMATION OF PROCEEDINGS 1. That part of St. 1889, p. 213, § 4, providing that, in proceedings by directors of irrigation districts for the confirmation by the superior court of the organization of the districts, and of the issuance of bonds, a motion for a new trial must be made on the minutes of the court, is in conflict with Const. art. 4, § 25, which declares that the legislature shall not pass local or special laws regulating the practice of courts of justice. 2. St. 1889, p. 212, authorizing the directors of an irrigation district to petition the superior court to confirm their proceedings in the issuance of bonds of the district, is not, because it authorizes the court to determine the right of the parties interested in the bonds before any controversy as to such right, in conflict with Const. art. 6, § 5, fixing the jurisdiction of the superior court. 3. If, in a petition to establish irrigation districts, the landmarks called for in the description of the land to be included in the district can be found on the ground, the description is sufficient, though the land is not definitely described. 4. The board of supervisors have discretionary power to determine what lands shall be included in an irrigation district, and, in the absence of abuse of discretion or fraud, their determination shall not be disturbed. 5. Act March 7, 1887, § 2, as amended by St. 1891, p. 143, provides that the board of su Rehearing granted. v.39p.no.7-49 pervisors shall divide an irrigation district into five divisions, as nearly equal as practicable, and one director, who shall be a "freeholder and resident of the district," shall be elected by each division, and that, if a majority of the holders of title petition for a formation of the district, the board of supervisors may, if so requested in the petition, order that there may be three or five directors for such district, and that they may be elected by the district at large. Section 3 provides that, for the purposes of election to determine whether the district shall be organized, the board of supervisors must establish a convenient number of election divisions in the proposed district. Held that, if the petition asked that the directors be elected at large, the board of supervisors had power to declare one precinct a convenient number, and, having done so, they were not required to divide the district into divisions, the act not requiring that, where the election was at large, one director should reside in each division. 6. The fact that public lands are included in an irrigation district will not invalidate the organization of the district. 7. Under St. 1891, p. 147, 15, providing that the board of directors of an irrigation district must determine the amount necessary to be raised for the purpose of providing for the work of irrigation, and shall call a special election, at which shall be submitted to the electors of the district the question whether or not the bonds of the district in the amount as determined shall be issued, the directors must, before calling an election, make an estimate of the probable cost of the work, based on some definite plan. Commissioners' decision. In bank. Appeal from superior court, Los Angeles county; Walter Van Dyke, Judge. Application of W. B. Cullen and others, as directors of the Glendora irrigation district, to the superior court, praying that the organization of the district, and issuance and sale of bonds, may be examined, approved, and confirmed. The Glendora Water Company appeared and answered. Judgment was rendered for the petitioners, and defendant, Glendora Water Company, appeals. Reversed. Chapman & Hendrick, for appellant. A. W. Hutton and Chas. L. Batchelder, for respondents. VANCLIEF, C. The Glendora irrigation district is composed of a tract of land containing about 3,000 acres, situate in the county of Los Angeles, and was organized December 21, 1891, by the board of supervisors of that county, in alleged accordance with an act of the legislature generally known as the "Wright Act," approved March 7, 1887 (St. 1887, p. 29), and amendments thereof. And this is a proceeding by petition of the board of directors of said irrigation district to the superior court of that county, praying that the organization of said district, and all the proceedings by which said board of directors ordered the issuance and sale of bonds of said district for $170,000 may be examined, approved, and confirmed, as authorized by an act "supplemental," to the "Wright Act," approved March 16, 1889 (St. 1889, p. 212). The Glendora Water Company (a corporation), being the owner of land in said irrigation dis trict, appeared as a defendant, and demurred to the petition on the ground that it does not state facts sufficient to entitle the petitioners to any relief; and especially that it does not state facts sufficient to give the court jurisdiction of the subject-matter thereof. The demurrer was overruled, and the defendant answered the petition. The court made written findings of facts, nearly all of which were stipulated by the parties, and thereupon rendered judgment according to the prayer of petitioners, approving and confirming the organization of the district, and the order of the board of directors for the issuance and sale of bonds. The defendant, Glendora Water Company, appealed from the judgment and from an order denying its motion for a new trial. 1. The respondents contend that the appeal from the order should be dismissed, or, at least, that the order should be affirmed, on the ground that the notice of motion for new trial does not specify any particular in which the evidence is alleged to be insufficient, nor any particular error in law, as required by section 659, Code Civ. Proc., when the motion is made on the minutes of the court, and the ground of the motion is insufficiency of evidence or error in law. It is true that the only grounds of the motion are insufficiency of evidence and errors in law, and that the notice contains no specification of either. But it does not appear that the motion was made on the minutes of the court. On the contrary, the notice states "that the motion will be made on a bill of exceptions," and it was so made. In answer to this, however, counsel for respondents contend that the motion for new trial must have been made, if made at all, on the minutes of the court, since section 4 of the act of 1889 (page 213), under which this proceeding was taken, imperatively so provides; and therefore, if not made on the minutes of the court, the motion was wholly unauthorized and void. On the other hand, counsel for appellant plausibly contends that the provision in section 4 of said act, requiring a motion for new trial to be made on the minutes of the court, is repugnant to the third subdivision of section 25 of article 4 of the constitution, which declares that the legislature shall not pass local or special laws "regulating the practice of courts of justice." While section 4 of the supplemental act provides that "the rules of pleading and practice provided by the Code of Civil Procedure, which are not inconsistent with the provisions of this act, are applicable to the special proceeding herein provided for," it further provides that "a motion for a new trial must be made on the minutes of the court." The inevitable effect of this last-mentioned provision is not only to deny the right to move for a new trial either on a statement of the case or on a bill of exceptions, as permitted by the Code in all other cases, but also to preIclude a motion for new trial on any one of the first four grounds upon which the Code allows such motion to be made, namely: (1) Irregularity in the proceedings of the court, jury, or adverse party, or abuse of discretion by which a party was prevented from having a fair trial; (2) misconduct of the jury; (3) accident or surprise; (4) newly-discovered evidence,-since upon each of these grounds the Code (section 658) requires the motion to be made upon affidavits. Conceding, as I do, that the objects and purposes of one class of actions or special proceedings may require a peculiar method of practice differing from those of other classes whose objects or purposes are substantially different, and also that a classification of methods of practice, appropriately adapted to the objects or purposes of each of the different classes of actions of special proceedings, may be based upon the distinction between the different objects to be attained, so that a law providing a different method of practice adapted to the attainment of the peculiar object of any one of such different classes of actions or special proceedings would be a general law,, yet I am unable to perceive that any lawful or honest object or purpose of the special proceeding under consideration requires, or would be promoted by, any restriction of the grounds upon which a motion for new trial is authorized by the Code of Civil Procedure; or, by requiring such motion to be made only on the minutes of the court, instead of permitting it also to be made on a statement of the case, or on a bill of exceptions, at the option of the moving party, as provided by the Code of Civil Procedure. On the contrary, it is obviously apparent that the main object of this special proceeding, as expressed in the act authorizing it, may be thwarted, and even defeated, by restricting the motion for new trial as required by section 4 of said act; since it is plain that either party to a proceeding of this class may be prevented from having a fair trial by irregularity in the proceedings of the court or adverse party, or abuse of discretion, or by misconduct of a jury in case of trial by jury, or by accident or surprise; and that material evidence may be discovered after the trial which could not, with reasonable diligence, have been discovered and produced at the trial; and also that the motion for new trial may sometimes be more conveniently, more clearly, and more effectively presented by a statement or bill of exceptions than upon the minutes of the court. It therefore appears that there is no reasonable ground for the distinction between the special mode of moving for new trials provided by section 4 of the act in question and that provided by the unquestionably general law,-the Code of Civil Procedure. The distinction, as we have a class founded upon some natural or intrinsic or constitutional distinction, it is not general or constitutional if it confers particular privileges or imposes peculiar disabilities or burdensome conditions, in the exercise of a common right, upon a class of persons arbitrarily selected from the general body of those who stand in precisely the same relation to the subject of the law." Upon this point see, also, Darcy v. Mayor of San Jose, supra, and cases there cited. The subject of the law in question is the mode of moving for new trials in the superior courts, to which subject the parties to all actions and special proceedings stand in precisely the same relation as do the parties to the small class of special proceedings, to which, alone, this law is made applicable, and should equally share the peculiar privileges conferred, or equally suffer the disabilities and burdens imposed by it; since no discrimination in the application of the law is justified by any peculiar characteristic of any object of the law, or of the parties to the special proceeding to which the law is applied. That part of the act requiring a motion for new trial to be made on the minutes of the court being void, the defendant properly disregarded it, and is entitled to be heard on its appeal from the order denying a new trial, upon questions of both law and fact, the appeal having been taken within two days after the date of the order. seen, suggests no reason why the general | applies equally to all persons embraced in mode provided by the Code of Civil Procedure should not be applied to motions for new trials in this special proceeding for the confirmation of bonds of irrigation districts, but the contrary. It follows, I think, that the distinct part of the fourth section of the act in question, which provides that "a motion for a new trial must be made upon the minutes of the court," is a special law "regulating the practice of courts of justice" in a matter to which an existing general law is appropriately applicable; and is therefore repugnant to section 25, art. 4, of the constitution. Darcy v. Mayor of San Jose (Cal.) 38 Pac. 500; City of Pasadena v. Stimson, 91 Cal. 238, 27 Pac. 604; Dougherty v. Austin, 94 Cal. 601, 28 Pac. 834, and 29 Pac. 1092. But it does follow from this that any other part of the act may not have the full operation and effect intended by the legislature, since the intended effect of the invalid provision as to new trials is not necessary to the complete operation and effect of all other provisions of the act, which other provisions constitute a general law applicable to a class of special proceedings distinguished from all other classes by attributes which reasonably require all the peculiarities of practice thereby provided, excepting, perhaps, the limitation of the time within which an appeal must be taken to 10 days, as to which no question is involved in this case. But the concession that, for most of its purposes, the act is a valid general law, does not help the special provision regulating the practice as to new trials. For the purpose of testing its constitutionality, that special provision must be treated as a distinct law, as it is, and as if it had not been injected into an act whose other provisions are constitutional. So considered it is seen to apply to only a limited species of special judicial proceedings, for which it provides a mode of moving for new trials materially different from that provided by the Code of Civil Procedure, without any reason or necessity for the difference, arising from any peculiar characteristic of the class of proceedings to which it is applied, nor from any other source. It is therefore inappropriate to the class of proceedings to which it is applied; for, as was said in the case of Dougherty v. Austin, 94 Cal. 621, 28 Pac. 834, and 29 Pac. 1092, “a classification permitted for one kind of legislation cannot be made the basis of a different kind of legislation, to which it is manifestly inappropriate." Besides, "it destroys the uniform operation of a general law and is special in a case where a general law not only can be made applicable, but in which a general law had been enacted, and in which there is no conceivable reason for discrimination." City of Pasadena v. Stimson, 91 Cal. 249, 27 Pac. 604. It is further said in the case last cited "that, although a law is general and constitutional when it 2. Counsel for appellant contend that the act of March 16, 1889, providing for a judicial examination, approval, and confirmation of bonds of irrigation districts, is unconstitutional for the reason that it authorizes a court to hear and determine what will be the rights of parties interested in those bonds, in advance of any controversy as to such rights. No provision of the constitution is cited to this point, except it is claimed that in all the different species of jurisdiction conferred on superior courts by section 5, art. 6, of the constitution, "it is presupposed that somebody is prosecuting somebody else to enforce or protect some right, or to redress or to prevent some wrong." But surely this is not true of actions or special proceedings in rem, of which superior courts are expressly given jurisdiction. For example, there can be no such presupposition in proceedings for the probate and confirmation of wills, nor in insolvency proceedings, since they may be, and often are, prosecuted to final and conclusive judgments without any controversy whatever. In all this class of cases, however, the petition or complaint contemplates a controversy and tenders issues which may be accepted and joined by any person interested who has been actually or constructively served with any kind of lawful process; and so it often happens in actions in personam that issues are tendered by pleadings in advance of any actual con. troversy, and before it is known whether or not any averment in the pleading will be controverted. Besides, the question under consideration has been decided by this court adversely to appellant, at least by implication, in several cases. Crall v. Irrigation Dist., 87 Cal. 140, 26 Pac. 797; Board v. Tregea, 88 Cal. 338, 26 Pac. 237; In re Madera Irr. Dist., 92 Cal. 296, 28 Pac. 272, 675. And counsel for appellant concedes that the question was involved in those cases, but claims that the ground of objection here urged by him was not expressly presented to the court in either of those cases. But I think it would have been of no avail if it had been presented. 3. The objections on the grounds that the proposed district was not definitely described in the petition for its organization, nor in the order calling the election, and that the latter varies from the former, seem to have been answered by this court in the case of Irrigation Dist. v. De Lappe, 79 Cal. 360, 21 Pac. 825, and cases last above cited. If the landmarks called for in the petition can be found on the ground, the description is sufficiently definite; and there is no evidence that such landmarks cannot be found. Nor does it appear that the description in the order calling the election varies from or is less definite than that in the petition. 4. It does not appear that the board of supervisors improperly either included in the district, or excluded from it, any parcels of land; and the objections made on these grounds are fully answered in the cases supra. What the board did in this respect was within its discretionary power, and the only available objection to it would be abuse of such power, or fraud; of neither of which is there any evidence. Irrigation Dist. v. De Lappe, 79 Cal. 360, 21 Pac. 825; Board v. Tregea, 88 Cal. 354, 26 Pac. 237; In re Madera Irr. Dist., 92 Cal. 343, 28 Pac. 272, 675. Besides, no person whose land is alleged to have been improperly included or excluded has complained. 5. Section 2 of the act for the formation of irrigating districts, as amended (St. 1891, p. 143), provides that the board of supervisors shall divide the district "into five divisions as nearly equal in size as may be practicable, which shall be numbered first, second, third, fourth and fifth, and one director, who shall be a freeholder in the division and an elector and resident of the district, shall be elected by each division: provided, that if a majority of the holders of title * *petition for the formation of a district, the board of supervisors may, if so requested in the petition, order that there may be either three or five directors, as said board may order, for such district, and that they may be elected by the district at large." The third section of the act provides: "For the purposes of the election above provided for (to determine whether the district shall be organized), the said board of supervisors * must establish a convenient number of election precincts in said proposed district, and define the boundaries thereof, which said precincts may thereafter be changed by the board of directors of such district. In any district the board of directors thereof may, upon the presentation of a petition therefor by a majority of the holders of title, order that on and after the next ensuing general election for the district there shall be either three or five directors, as said board may order, and that they shall be elected by the district at large, or by divisions, as so petitioned and ordered; and after such order such directors shall be so elected." Under these provisions, the board of supervisors declared one precinct to be a convenient number for the election; and, as requested in the petition, ordered that five directors be elected by the district at large, and did not divide the district into five divisions. Counsel for appellant contend, notwithstanding the board had properly established but one election precinct, and properly ordered that five directors be elected by the district at large, yet the board was bound to divide the district into five divisions, and to elect one director from (not "by") each division. In this I think counsel mistaken, since the board may order either five or three directors, and, in either case, that they be elected "by the district at large"; and when it does so there can be no rational object for dividing the district into five divisions, especially if only three directors are to be elected. When the election is by the district at large, neither of the five divisions would be distinctly represented on the board, even though a director should be taken from each division, since a majority of the electors at large might select a director who would not truly represent the division in which he resides, or whose interest might be greater in another division. Besides, a district may be so divided as to enable a majority of the electors at large to select four-fifths of the directors from the same quarter section of land, while each resides in a distinct division. Had the legis lature intended that each director should be taken from a division distinct from all others when elected by the district at large, it could easily have said so, and in that event would hardly have failed to provide for a division of the district into three divisions, when only three directors are to be elected. The statute is not so explicit on this matter as it might be, yet I have no doubt the legislature intended that there should be no division of the district when the election is to be by the district at large. 6. Prior to the filing of the petition of the organization of the irrigation district, a written agreement was executed between the defendant (Glendora Water Company) of the first part, and J. P. West and 45 other natural persons, alleged to have been interested in effecting an organization of the Glendora |