The case

was tried by the court upon these issues. Findings, conclusions, and judgment were made and given in favor of the plaintiff.

The defendants appeal from the judgment upon the judgment roll.

1. It is contended that the superior court erred in overruling the demurrer to the complaint. We do not think so. The complaint is, perhaps, justly amenable to some of the criticisms directed against it, but it states facts sufficient to constitute a cause of action. It presents a case substantially like the case of Standart v. Round Valley Water Co., 77 Cal. 399, in which we held that this action would lie to quiet title to rights of the character here involved.

2. It is contended that the superior court has failed to find upon all the material issues raised by the pleadings, and that the findings made do not support the judgment. We think every material fact has been found, and that the findings do support the judgment. The two points under this head upon which counsel for appellants most strongly insist are: 1. That it is not shown by allegation or finding that the defendants claim any water which belongs to plaintiff at a time when plaintiff shows himself entitled to it; and 2. That defendants are not shown to have interfered with the use of the water at the season when plaintiff was entitled to it.

As to the first point, the complaint shows that defendants were making preparations to divert the whole of the water, so as to deprive plaintiff of the use of it, and that they did this under claim of a right to do so.

The answer asserts a right to use forty inches of the stream on the lands of defendants for irrigating crops (necessarily during the irrigating season), and this assertion of right renders a finding upon the point un

necessary.

As to the second point, it is only necessary to say that

the right to maintain this action does not depend on an actual interference with plaintiff's right. The assertion of an adverse claim is all that is required.

No error appears in the record.

Judgment affirmed.

!

WORKS, J., SHARPSTEIN, J., PATERSON, J., THORNTON, J., and MCFARLAND, J., concurred.

[No. 12442. In Bank.-July 3, 1889.]

B. P. PEREGOY, DEFENDANT AND APPELLANT, v. JACOB MCKISSICK, PLAINTIFF AND RESPONDENT.

WATER RIGHTS-APPROPRIATIONS-DIVERSION BY RIPARIAN PROPRIETOR-DAMAGES INJUNCTION.-A prior appropriator of water cannot enjoin a riparian proprietor from causing the water of a natural stream to flow over his lands for beneficial purposes, where it appears that the prior appropriator is only nominally damaged by the acts done and threatened by the riparian owner, and it does not appear that the prior appropriator has used the water for a beneficial purpose, or raised or attempted to raise any crops on his land.

ID.-ACTS OF APPROPRIATION.-Whether an actual appropriation of water by means of a dam and ditch, not initiated by compliance with the provisions of the Civil Code as to posting and recording of notices, is valid, quære.

APPEAL from a judgment of the Superior Court of Lassen County.

The facts are stated in the opinion of the court.

Spencer & Raker, and A. L. Shinn, for Appellant.

There must be a showing of a permanent continuing and irreparable injury. A mere repeated trespass without such injury will not justify an injunction. (Mechanics' Foundry v. Ryall, 62 Cal. 416; Leach v. Day, 27 Cal. 645; Tevis v. Ellis, 25 Cal. 515; Tomlinson v. Rubio, 16 Cal. 203; Burnett v. Whitesides, 13 Cal 156; Ritter v. Patch, 12 Cal. 298; Middleton v. Franklin, 3 Cal. 238; Hilliard on

Injunctions, 3d ed., 345; 1 High on Injunctions, 2d ed., p. 476; Catching v. Terrill, 10 Ga. 576; Thomas v. James, 23 Ala. 725; Hoke v. Perdue, 62 Cal. 546; Waldron v. Marsh, 5 Cal. 120.) An injunction will not lie to restrain the use of water while the person seeking the injunction is not in a condition to use the water or does not require it. (Nevada Co. & S. C. Co. v. Kidd, 37 Cal. 282.) No right can be acquired except by an appropriation to a useful purpose. (Eddy v. Simpson, 3 Cal. 249; 58 Am. Dec. 408; Kimball v. Gearhart, 12 Cal. 28.)

Goodwin & Davis, and W. N. Goodwin, for Respondent.

BEATTY, C. J.-There is the same fault in the entitling of this appeal as that noticed in case No. 12441, ante, p. 568. It should be entitled McKissick v. Peregoy.

This is an appeal from a judgment enjoining the defendant from interfering with a head-dam by means of which the plaintiff diverts water from a stream which flows in its natural course through the defendant's lands. This head-dam and connecting ditch were constructed by plaintiff on the land now owned by defendant while the title thereto remained in the government, and they have been used to divert the water of the stream to lands belonging to the plaintiff. The defendant, owning land bordering on the stream below plaintiff's dam, and needing the water for irrigation, has several times removed portions of the dam so as to cause the water to flow down to his own ditches, and claims the right to do so, and is insolvent.

But it is not found that plaintiff will be damaged by the acts done and threatened by the defendant except nominally. It is found that the water is useful and necessary for the irrigation of plaintiff's land, and that he diverted it for that purpose; but it is not found that he has ever used it for that purpose, or that he has ever raised or attempted to raise any sort of crops on his

land. For aught that appears, he has simply turned the water out of the stream and allowed it to run to waste. And when defendant turned it back into its natural channel through his land (where he did use it for beneficial purposes) it does not appear that plaintiff was at all damaged. The finding shows he was not damaged. Under such circumstances, a party claiming as an appropriator has no right to an injunction against a riparian proprietor, and the judgment is therefore erroneous.

Another point is also presented by the record in this case, viz., the validity of an appropriation not initiated. by compliance with the provisions of the Civil Code as to posting and recording of notice. This question was decided in the case of Necochea v. Curtis, and a rehearing afterward granted.

As counsel in this case have not argued that question, and its decision is not necessary to a disposition of his appeal, we shall leave it untouched until we come to reconsider the case of Necochea v. Curtis.

For the reason above specified, the judgment is reversed, and cause remanded.

WORKS, J., SHARPSTEIN, J., PATERSON, J., and MoFARLAND, J., concurred.

THORNTON, J., concurring.-I concur, and will add that if the plaintiff has never used the water for any useful or beneficial purpose, he was never an appropriator, and if he has ever used it for the purposes above mentioned, and then ceased to use it, his right has ceased. This is so by both statute (Civ. Code, sec. 1411) and the law fixed by the decisions in this state made before the statute was enacted. If he ever appropriated the water, or his right has ceased by non-user, we cannot see what right he has against the defendant, a ripa-. rian proprietor, to continue his diversion and waste of the water.

[No. 12351. In Bank.-July 3, 1889.]

C. E. FARNUM, RESPONDENT, v. PHILIP HEFNER, APPELLANT.

LANDLORD AND TENANT-LEASE-COVENANT NOT TO ASSIGN-EXECU TION SALE-FORFEITURE.-The covenant of a lessee not to assign the lease applies only to a voluntary assignment, and is not broken by an involuntary assignment by sale of the lessee's interest under execution; nor does any involuntary assignment of the lease work a forfeiture, unless expressly so declared in the lease, or unless a sale is submitted to in bad faith, or is brought about by the voluntary action of the lessee.

ID. ACKNOWLEDGMENT OF FORFEITURE BY LESSEE-RIGHTS OF EXECUTION CREDITOR-RELATION.-A lessee cannot acknowledge a forfeiture of the lease, after the levy of an execution upon his interest in the lease, so as to affect the rights of the execution creditor. The title under the execution sale will relate back to the date of the levy as against such acknowledgment, especially if there does not appear to be any other ground or consideration for the acknowledgment than to defeat the rights of the execution creditor. ID.-ACTION FOR CONVERSION OF CROP BY EXECUTION PURCHASEREVIDENCE. In an action of trover against an execution purchaser of the lessee's interest for conversion of the lessee's share of the crop, it is error to exclude from evidence the judgment roll in the action in which the execution was issued and levied upon the lessee's interest; and it is also error to admit evidence of an acknowledgment of forfeiture by the lessee, made after the levy of the execution upon the lessee's interest in the lease. ID. CONSTRUCTION OF LEASE-DIVISION OF CROP.-In an action by a landlord against the purchaser of the lessee's interest under execution sale, to recover damages for conversion of the crop under a lease providing that the whole crop was to be delivered to the lessor and remain his property until such delivery, and that twothirds of the crop should upon such delivery be immediately redelivered and transferred to the lessee, if it appears that a delivery of the whole crop harvested by the purchaser of the leasehold interest was tendered to the lessor, and refused unless the delivery was made free from any claims of such purchaser, and no reason appearing why there should be any withholding of the lessee's share of the crop for the protection of the lessor, the purchaser has a clear right to retain such share without a delivery thereof in the first instance to the lessor, and no action will lie in favor of the lessor to recover the same, or for damages for its conversion.

APPEAL from an order of the Superior Court of Butte County denying a new trial.

The facts are stated in the opinion of the court.