plaint, and the injunction issued upon it was void, and if void, might be disobeyed without committing any contempt of court. But no mere irregularity or omission not going to the jurisdiction of the court can be taken advantage of in this proceeding. Here we can only inquire whether the court had jurisdiction to issue the injunction. The code prescribes what a complaint must contain, and it provides that "the court must in every stage of an action disregard any error or defect in the pleadings or proceedings which does not affect the substantial rights of the parties, and no judgment must be reversed or affected by reason of such error or defect." (Code Civ. Proc., sec. 475.)

The two provisions are equally mandatory and imperative. The defect relied on in this case could not in any conceivable way "affect the substantial rights of the parties." The summons contained the name of the court. And the cover of the complaint contained it. So did the writ of injunction which was disobeyed. And there was no "supreme court of the county of Yuba, state of California." The requirement that the complaint must contain the names of the parties is just as mandatory and imperative as it is that it must contain the name of the court. But in Campbell v. Adams, 50 Cal. 203, the court said: "The only ground on which it is claimed the judgment is void is, that he (Lewis) was not named as a defendant in the original or any amended. complaint. . . . . But we are not prepared to hold that the judgment was a nullity for want of jurisdiction to render it. When Lewis was served as a defendant sued by a fictitious name, the court acquired jurisdiction over his person, and it then became the duty of the plaintiff to amend the complaint by inserting the true name. The omission to do this rendered the judgment irreg ular, but it was not void."

In this case we think there was a complaint filed in the proper court, and that the defect relied on did not

affect the substantial rights of the parties, and therefore must be disregarded in every stage of the action.

The writ is discharged, and the prisoners remanded to the custody of the sheriff of Yuba County.

THORNTON, J., MCFARLAND, J., and BEATTY, C. J., con

curred.

[No. 12504. In Bank.-July 3, 1889.]

IRVING A. COONRADT, APPELLANT, v. GEORGE R. HILL, RESPONDENT.

WATER RIGHT-APPROPRIATION BY DITCH-ADVERSE POSSESSION-STATUTE OF LIMITATIONS-PAYMENT OF TAXES.-When the water of a natural stream has been diverted by means of a dam and ditch, and has been used adversely to a lower riparian proprietor for more than five years as an appurtenance to the land of the appropriator, and no separate taxes have ever been levied or assessed upon the ditch and water right, the defense of the statute of limitations is made out. It must be presumed that the appropriator paid whatever taxes were due from him upon the ditch and water right by reason of the enhanced value of the land to which it was appur tenant, and that the situation of the ditch and water right, and the disadvantages and benefits resulting to the riparian owner were considered by the assessor in assessing his land. ID.-CODE REQUIREMENTS AS TO APPROPRIATION-STATUTE OF LIMITATIONS ESTOPPEL--EVIDENCE.-So far as defenses to an action for diversion of water are founded upon the statute of limitations and equitable estoppel, it is immaterial whether the defendant or his grantor made an appropriation of the water in compliance with the code requirements as to posting notices, etc., or not. To sustain those defenses, the actual construction of the ditch which diverted the water may be shown without preliminary proof of the posting or recording of notices. Evidence as to the convenience and necessity of the ditch to the land of the appropriator is relevant to the defense of estoppel, and to show that the water right became appurtenant to the land and passed with it to defendant. ID. WATER RIGHT AS AN APPURTENANCE-DEED EVIDENCE.-When a ditch and water right clearly passed by a deed of land as an appurtenance thereto, the admission of evidence that the actual intention and understanding of the parties were to include them in the sale cannot be prejudicial error.

APPEAL from a judgment of the Superior Court of Butte County, and from an order refusing a new trial

The facts are stated in the opinion of the court.

Hundley & Gale, for Appellant.

F. C. Lusk, for Respondent.

BEATTY, C. J.-Clear Creek is a natural stream flowing in a southerly direction through the middle of the east half of section 23 of a certain government township in Butte County.

In August, 1876, the government title to the southwest quarter of the same section vested in John Powers, who, in the fall of that year, completed the diversion of a portion of the water of Clear Creek from its natural channel to said southwest quarter, where the same has been since continuously used by him and his successor, the defendant, Hill, for watering stock, for domestic purposes, and for irrigating their crops and orchards.

This diversion and appropriation was effected by means of a dam placed in the stream about the middle of the northeast quarter of the section, and a ditch heading at the dam and extending thence southerly through said northeast quarter, and southwesterly through the southeast quarter the line of said southwest

quarter.

In 1879, said southeast quarter was patented to the California and Oregon Railroad Company, in pursuance of grants contained in certain acts of Congress passed in 1866, 1868, and 1869. In 1882, the plaintiff, Coonradt, acquired the title of the railroad company to the west half of said southeast quarter, across which Clear Creek flows in its natural course, and through which the Powers ditch extends. Four years after thus becoming the owner of the land crossed by the Powers ditch, and riparian proprietor on the creek below the point of his diversion of the water, viz., in July, 1886, Coonradt commenced this action, in which he seeks to have it adjudged that defendant has no title to the ditch, and

no right to maintain it or to divert any part of the waters of Clear Creek through it. To sustain his suit, he relies upon his riparian right to the full natural flow of the stream as against one whose land does not border upon it, and who, as he contends, has made no valid appropriation of the water which he is diverting.

The defendant relies upon three separate defenses: 1. A valid appropriation of the water by Powers under license of the government while it was property of the government; 2. The statute of limitations; and 3. An equitable estoppel arising out of the acts and declarations of the plaintiff by which he (defendant) was induced to purchase the Powers land in the belief that the ditch and water right were appurtenant to it.

The findings and conclusions of the superior court were expressly in favor of defendant as to the last two defenses, and substantially supported the first. The plaintiff appeals from the judgment entered in conformity to the findings, and also from an order overruling his mo tion for a new trial.

We perceive no error in any of the findings or conclusions of the superior court, but it is unnecessary to consider or to pass upon all the points covered by the discussion of counsel.

It is very clear to our minds that the defense based upon the statute of limitations was fully made out, and it will be sufficient to notice the points relating to that part of the case.

Every fact respecting the character and duration of the possession and use of the ditch and water by defendant and his predecessor, required to establish a prescriptive right to such possession and use, is found upon testimony entirely satisfactory and substantially uncontradicted. With respect to this ground of defense, the appellant urges but one objection to the conclusions of the superior court, and that is founded upon the amendment of April, 1878, to section 325 of the Code of Civil

Procedure, which requires, in addition to adverse possession, the payment by the holder of "all taxes which have been levied and assessed upon such land."

With respect to this point, the finding of the superior court is: "That no taxes have ever been levied or assessed against said ditch and water right, or either, at any time during their existence, for any purpose whatsoever."

Notwithstanding this finding, the appellant contends that the defendant did not bring himself within the statute, and is not entitled to plead it. For he says this ditch and water right were of value; they ought to have been assessed, and ought to have borne their share of taxes. If they did not, it was solely because the defendant fraudulently evaded the duty cast upon all property owners by the statute of including in their sworn returns to the assessor all property owned or claimed by them and subject to taxation. And he argues that the defendant should not be allowed to avail himself of the benefits of a law the policy of which he has thus circumvented.

We do not think it by any means clear that defendant was required, under a proper construction of the revenue law, to include his ditch and water right as a separate item in his return to the assessor. This is not the sort of ditch to which section 3663 of the Political Code seems to refer. It is a small ditch supplying water for domestic purposes, watering stock, and irrigating a small and definite tract of land. It is used solely in connection with, is appurtenant to, and passes by conveyance of that tract of land. (Civ. Code, sec. 662; Farmer v. Ukiah Water Co., 56 Cal. 11.) It would seem. that the ditches referred to in the above-cited section of the Political Code are those which are constructed on a large and extensive scale, not appurtenant to any particular land, but held in gross and operated for the supply of communities and neighborhoods for mining, manufactur ing, irrigating, and other purposes.