homestead rights before entry, says: "The presumption is that Congress intended to make this right as valuable as possible. . . . Any restriction upon its alienation must decrease its value. We are unable to find anything in the acts of Congress or in the dictates of an enlightened public policy that requires the imposition of any such restraint. On the other hand, the general rule of law which discourages all restraints upon alienation, the marked contrast between the purpose and the provisions of the grant of the right to the additional land, and the history of the legislation which is codified in the existing homestead law, leave us without doubt that the assignment before entry of the right to this additional land granted by United States Revised Statutes (sec. 2306) contravenes no public policy of the nation, violates no statute, and is valid." Without multiplying authorities upon this proposition, it is sufficient to refer to the language of this court in Rose v. Nevada etc. Lumber Co., 73 Cal. 385, where it is said: "In the absence of an express prohibition against an alienation of the property by the complainant after the issuance of a certificate from the general land office to locate in person or by agent a certain number of acres, we cannot say that the right so to alienate does not exist. It is a right which need not in terms be granted by the sovereign authority, for it exists, if not expressly prohibited or opposed to public policy." The right of alienation or assignment, therefore, in the absence of imposed restriction, vests in the entryman, and, as has been said, there is nothing in the law imposing such restriction, while, upon the other hand, equitable considerations impel strongly to the view that such rights should be assignable. The case at bar is illustrative of this. Foster had filed his declaratory statement, paid twenty per cent of the purchase price, and reclaimed the land by irrigation as required by law. He was not permitted to make his final payment and proof, because the right to do so had been peremptorily suspended by order of the land department. Foster then, having done all that the law requires, and being unable to obtain his patent, dies. To hold that his right, perfected in so far as he could perfect it, was not alienable, and did not descend, would mean that the policy of the government was to deprive his heirs of the fruits of his labor and expenditures, and leave the land, with all its improvements, open to the first comer who might obtain possession of it. The central idea, and the whole policy of the government, in dealing with these arid lands, was to secure their reclamation upon moderate terms for the benefit of the country. While, of course, having no determinative weight in the matter, the views of the land department are entitled to consideration. The receipts which they originally issued under the act of 1877 tacitly assumed that the rights of the entryman were alienable, and provided in terms that a patent should issue to the entryman "or his assigns or legal representatives." Later, however, the department apparently began to doubt the soundness of its construction of the act, and announced that, while it would not recognize future assignments, it would recognize entries which had been assigned prior to the promulgation of the last decision, and that patents therefor would be issued to assignees. Later again it fully recognized the assignability of such entries. Finally, it may be said that the fancied evils which appellant sees in the construction that such entries are assignable, and that it was to avoid these evils that Congress did not in the act of 1877 expressly make them assignable, are entirely disposed of by the fact that Congress, in the amendatory act of 1891, instead of expressly declaring them to be unassignable, expressly declared them to be assignable. The judgment and order appealed from are affirmed. [Sac. No. 868. Department Two.-February 25, 1902.] J. CHURCHILL, Respondent, v. A. J. LOUIE, Appellant. WATER RIGHTS-ACTION ΤΟ RESTRAIN DIVERSION-ANSWER-PRES CRIPTION.-In an action to restrain the diversion of a stream, and for damages, where the answer does not plead a prescriptive right by reference to the proper section of the statute of limitations, but assumes to plead merely a prescriptive right, it must set forth all the elements of such right, and where it merely alleged that the use was adverse, without stating to whom, and without averring that the use was exclusive and adverse to the plaintiff, it is insufficient. ID. INJUNCTION SUIT-JURY TRIAL-GENERAL VERDICT-FINDINGS.— The defendant is not entitled to a jury trial of all the issues in an injunction suit. Where a jury trial is permitted in such suit, the verdict, whatever its form, is only advisory as to the equity features of the case, if not so as to the damages. If the verdict was general, and was adopted by the court as to the damages, the defendant cannot complain. The court properly made full findings upon the question of the right to the injunction, which were supported by the evidence. ID.-ENTRY OF JUDGMENT BY CLERK.-The case is not one in which the clerk is authorized to enter judgment upon the verdict within twenty-four hours, under section 664 of the Code of Civil Procedure. APPEAL from a judgment of the Superior Court of Siskiyou County and from an order denying a new trial. J. S. Beard, Judge. The facts are stated in the opinion. Warren & Taylor, for Appellant. Gillis & Tapscott, for Respondent. CHIPMAN, C.-Action to restrain defendant from diverting the waters of Butte Creek, Siskiyou County, and for damages. The cause was tried by a jury, and a general verdict was rendered for plaintiff, assessing his damages at five hundred dollars. The court made full findings of facts, and found, as did the jury, that plaintiff was damaged by defendant in the sum of five hundred dollars; that plaintiff was entitled to the uninterrupted flow of one thousand inches of water, under a four-inch pressure, flowing through the stream, and decreed that defendant be restrained from diverting any of the waters of the creek "when there is not to exceed one thousand inches of water, measured under a four-inch pressure." Defendant appeals from the judgment and from the order denying his motion for a new trial. Defendant presents but two questions: 1. It is contended that the court erred in refusing defendant certain testimony in support of his defense of adverse use of the waters of the creek. The allegation of the answer was as follows: "And for a further answer defendant shows: That he and his predecessors have during the period of eleven CXXXV. CAL.-39 years and more last past, and openly, notoriously, peaceably, adversely, uninterruptedly, and under a claim of right and title thereto, used and appropriated eighty inches measured under a four-inch pressure, of the water of said Butte Creek, for irrigating his said lands, and that such use is necessary and proper therefor." When the offer was made, plaintiff objected that the evidence is incompetent, irrelevant, immaterial, and not within the issues of the case, and the further objection that it does not present a defense, and the answer does not plead a prescriptive right or any adverse use sufficient to give title. In sustaining the objection, the court remarked: "I will allow you to introduce proof on the appropriation, but not on the adverse claim, . . . the claim of prescriptive right. I will allow proof as to the use of the water in rebuttal of plaintiff's case as to quantity and continuation of the use,—that is, as a defense to that portion of it,-under an affirmative right, not a prescriptive right, under the answer. I will allow you to file an amendment to the answer if you wish." Defendant rested on his exception, and did not offer to amend his answer. It was said in Alhambra etc. Water Co. v. Richardson, 72 Cal. 598, that "prescription and limitation are convertible terms, and a plea of the proper statute of limitations is a good plea of a prescriptive right. The language of decisions with reference to water rights has been in accordance with this view." Defendant could have pleaded the statute as provided in section 458 of the Code of Civil Procedure by reference to the appropriate section. He did not do this, but chose to plead the facts constituting the limitation or prescriptive right. In doing so it was incumbent on him to plead all the elements entering into a prescriptive right. (Manning v. Dallas, 73 Cal. 420.) Had the point not arisen when the proof was offered, and had the parties proceeded on the assumption that the right was well pleaded, it would be too late now to object (Alhambra etc. Water Co. v. Richardson, 72 Cal. 598); but the question was fairly presented, the objection was timely made, and the court gave defendant the opportunity to amend, which he declined. Was the prescriptive right sufficiently pleaded? We think not. It is not alleged that the use was exclusive or adverse to plaintiff. It does not appear against whom the use was adverse, nor that it was adverse to any one. Inasmuch as actual notice was not alleged, it was necessary to allege the use in such manner as to impart constructive notice. (Thompson v. Felton, 54 Cal. 547.) In Oneto v. Restano, 78 Cal. 374, the finding of the court relating to the waters of a certain spring was, that "the possession, claim, and use of the defendant and his grantors, as in these findings set forth, has been quiet, peaceable, open, and notorious." The court said: "This finding is clearly insufficient in that it does not state that the use was adverse or continuous" (citing Unger v. Mooney, 63 Cal. 5951). The answer alleged that the defendant used the water "adversely," but this was not an allegation that the use was adverse to plaintiff. In Alhambra etc. Water Co. v. Richardson, 72 Cal. 598, the finding was "adversely to the whole world," which, of course, would have included plaintiff, if the phrase had been used in the present case. If it be conceded that the term "uninterruptedly" is the equivalent of "continuously," and that the term "adverse" meant "in hostility," still it was necessary to show that the use was exclusive, and that the adverse use was adverse to plaintiff. For all that appears, the use might have been in hostility to some other person but subordinate to plaintiff. 2. The cause was tried October 30, 1899, and after full instructions the jury rendered their verdict. On January 5, 1900, the court made its findings of fact, conclusions of law, and entered judgment for plaintiff. In the findings of fact the court finds that the jury rendered the following verdict (setting it out), and then proceeds to make full findings of fact, which need not be here repeated. In the judgment the verdict is set forth, and the court on the verdict and on the findings adjudged that defendant be restrained from using the waters of said creek in any manner so as to prevent the same from flowing to plaintiff's premises to the extent of one thousand inches, measured under a four-inch pressure, but leaving to defendant any excess of that quantity that may flow in the said creek. Appellant contends that the judgment is void, because the court neither entered judgment on the verdict within twenty-four hours nor set it aside, and that its duty was to do one or the other (citing section 664 of the Code of Civil Procedure). It is also contended that defendant was entitled 1 49 Am. Rep. 100. |