It is urged by appellant that as the ordinance upon which the action is based provides that "the tax collector may direct suit," etc., the complaint should have averred that the tax collector had directed the suit to be brought, and not having done so, that the demurrer should have been sustained.

There can be no doubt but that where a pleader wishes to avail himself of a statutory privilege or right given by particular facts, he must state in his complaint the facts upon which the right is founded. (Dye v. Dye, 11 Cal. 163; Himmelman v. Danos, 35 Cal. 448.)

The objection goes not to the absence of any fact constituting the cause of action, but rather to the authority to bring the suit for want of an authorization from the tax collector.

The action is instituted by the district attorney of the county, an attorney at law and an officer of the court.

It was not necesary to state in the complaint that he was directed to bring the action. An attorney at law is presumed to be authorized by the proper party to institute the actions he brings, until the contrary is made to

appear.

We see no ambiguity or uncertainty in the complaint, and are of opinion the demurrer was properly overruled.

Section 26 of the County Government Act, under which the ordinance was enacted, provides that "no ordinance passed by the board shall take effect within less than fifteen days after its passage, and before the expiration of the said fifteen days the same shall be published, with the names of the members voting for and against the same, for at least one week in some newspaper published in the county, if there be one; . . . . an order entered in the minutes of the board that such ordinance has been duly published shall be prima

facie proof of such publication."

.

The essential thing to be done was to publish the ordinance in some newspaper published in the county, if there

was one, for at least one week, with the names of the members voting for and against the same.

The evident object of this provision is that notice may be imparted to the public of the nature and requirements of the ordinances which may affect their rights and inter

ests.

The statute does not in terms require any order from the board of supervisors for the publication, and the fact that they made an order for the publication in a paper called the Republic, and that it was published in the Thursday Republic, did not in any wise weaken the force of the publication as made, or impair its usefulness as a means of information to the public.

Where, as is sometimes the case, a notice is to be given by publication in a newspaper to be designated by the party who is required to give the notice, the designation of the paper may be supposed to be submitted to his judgment, and to become an essential part of the proceedings, but no such considerations arise here.

It is next urged that "the ordinance (exhibit A) was not passed at a time when the board were holding a legal session, and was invalid, and could not be amended so as to impart any validity to it."

Section 22 of the County Government Act provides that the board of supervisors must by ordinance provide for the holding of regular meetings of the board at their respective county seats."

The next section of the same act provides for special meetings.

Section 4045 of the Political Code, as before stated, was approved March 13, 1883, and the County Government Act on the 14th of March, 1883.

In Ex parte Benjamin, 65 Cal. 310, this court held that the County Government Act repealed the act of March 13, 1883, relating to license taxes, but that an ordinance of a board of supervisors, passed at a regular

session of the board after March 14th, but before the board had provided for regular sessions under the latter act, was valid.

The theory of that case is, that the County Government Act provides for an ordinance fixing the times at which regular sessions are to be held, and that until such ordinance was passed the board could continue to transact business at the regular sessions previously provided.

Ex parte Benninger, 64 Cal. 291, is to the same effect, substantially; though the question of repeal of the act of March 13th was not therein considered. In Santa Clara v. Southern Pacific R. R. Co., 66 Cal. 642, it was expressly held that section 4045 of the Political Code was repealed by the County Government Act.

Ordinance A was not passed at a regular session of the board, and cannot therefore be upheld under the theory advanced in Ex parte Benjamin, supra. If upheld at all, it must be on the assumption that section 4045 of the Political Code, which required the board to fix the rates of county licenses on the first Monday of October in each year, was still in force. It was evidently upon this assumption that the board met and acted in passing the ordinance.

The section having been repealed, there was no authority for their meeting and action, and ordinance A was null and void.

The judgment should be reversed, and judgment entered in the court below in favor of defendant.

BELCHER, C. C., and FoOTE, C., concurred.

The COURT. For the reasons given in the foregoing opinion, the judgment is reversed, with direction to the court below to enter judgment for defendant.

[No. 8117. In Bank.- October 30, 1886.]

LELAND STANFORD, RESPONDENT, v. J. J. FELT ET AL., APPELLANTS.

WATER RIGHTS

DIVERSION RETURN OF WATER

FINDINGS. In an action to restrain the diversion of water from a certain creek, the findings on the issue as to whether the water, after its diversion, was returned to the bed of the creek or not, held, too indefinite and uncertain to sustain the judgment restraining the diversion.

APPEAL from a judgment of the late District Court of the Twelfth Judicial District for the county of San Mateo, and from an order of the Superior Court of that county refusing a new trial.

The plaintiff is the owner of a tract of land lying on the bank of the San Francisquito Creek, and the defendants of another tract through which flows the Trancos, a tributary and feeder of the San Francisquito. The action was brought to restrain the defendants from continuing a certain reservoir constructed by them across the Trancos Creek, in such a manner as to divert the natural flow of the waters thereof from the lands of the plaintiff. A judgment was rendered perpetually enjoining the defendants from diverting any of the waters of the creek or discharging any part thereof into the reservoir. The further facts are stated in the opinion of Mr. Justice Thornton.

Edward J. Pringle, and P. G. Galpin, for Appellants.

W. H. L. Barnes, for Respondent.

THORNTON, J.- By the common law of England, the right of the riparian proprietor to the flow of a stream is inseparably annexed to the soil and passes with it, not as an easement or appurtenance, but as part and parcel of it. Use does not create the right, and disuse cannot destroy or suspend it. The right of such proprietor ex

tends to the natural and usual flow of all the water of the stream, unless when the quantity has been diminished as a consequence of the reasonable use or appropriation of it by other riparian owners for proper and legitimate purposes. (Ferrea v. Knipe, 28 Cal. 340; S. C. 87 Am. Dec. 128; Lux v. Haggin, 69 Cal. 255.) The use by the riparian owner of the water for domestic purposes for irrigation and for the propulsion of machinery are recognized as proper and legitimate purposes. This we regard as the law of this state. (See Ferrea v. Knipe and Lux v. Haggin, supra.) It appears to be law that where all the water of a stream is needed for domestic purposes and for watering cattle, and is thus consumed by one proprietor, the law allows such use.

But in making such reasonable use of water, such proprietor must return the surplus which remains after such use to the natural channel of the stream (Dilling v. Murray, 6 Ind. 324; S. C., 63 Am. Dec. 385; 3 Kent's Com. 439; Miller v. Miller, 9 Pa. St. 74; S. C., 49 Am. Dec. 545; Gould on Waters, 213); and if this is not done, the diversion will be restrained at the suit of a riparian owner below. Nor is the owner lower down the stream required to show, in order to procure an injunction, any actual present damage. The diversion by lapse of time (Crandall v. Woods, 8 Cal. 136;

may grow into a right.

American Co. v. Bradford, 27 Cal. 360; Gould on Waters, sec. 214; Moore v. Clear Lake W. W., 68 Cal. 146; L. R.

19 Ch. 451; L. R. 7 H. L. 697.) an injunction will be awarded.

To prevent such result, (Parker v. Griswold, 17

Conn. 287, affirming 13 Conn. 279.)

It appears from the findings in this case that water has been diverted from the stream, on which both plaintiff and defendants are riparian proprietors, but as to the fact whether it has been returned or not, the finding is as follows:

"That except by natural gravitation, and in the summer time over dry lands, no means of returning water di