bind an indorser on a note payable after demand the demand should be made within a reasonable time, should apply as to these notes. As the Insurance Act provided that these notes should be negotiable, it was intended to secure the freest negotiability at any time the company might desire to negotiate them. It was contemplated that at any time before a fixed capital was achieved they might be readily convertible into money. This ready negotiability could be best attained by making the notes payable at a given period after "actual demand," because as an indorser the company would then be liable to the holder until he chose to make actual demand for payment, without any question possibly arising as to whether the demand was or was not made within a reasonable time.

It was also intended by this form of note, requiring "actual demand," to prevent as to the payee the indulgence of any presumption of demand from lapse of time. In effect, by the use of the word "actual," as distinguished from the word "presumed," it was intended by the parties as to these notes that no presumption of demand having been made on it should be indulged in; that it was to be continuing security which would be unaffected by mere lapse of time before actual demand, and that it should not mature until actual demand for payment of it was made. Under these views the demand made for the payment of this note was in time, the statute of limitations was no bar to the action commenced on it, and the demurrer should have been overruled.

The judgment is reversed, with directions to the lower court to overrule the demurrer and allow the defendant to an

swer.

Henshaw, J., and McFarland, J., concurred.

[S. F. No. 4654. In Bank.-February 5, 1907.]

ELIZA SHIPMAN et al., Petitioners, v. E. P. UNANGST, Judge of the Superior Court, etc., Respondent.

ESTATES OF DECEASED PERSONS-ORDER SETTING APART HOMESTEAD— FAMILY ALLOWANCE-NEW TRIAL.-A motion for a new trial is not a proper procedure for the reconsideration of orders setting apart a homestead and exempt property to a widow, and awarding her a family allowance, as it is the duty of the court ex parte and without petition to make such orders.

ID. BILL OF EXCEPTIONS-APPEAL FROM ORDER.-A bill of exceptions, presented to be used on such a motion, cannot be settled as a bill to be used on appeal from such orders when it was presented too late for such purpose.

APPLICATION for a Writ of Mandate directed to the Judge of the Superior Court of San Luis Obispo County. E. P. Unangst, Judge.

The facts are stated in the opinion of the court.

S. V. Wright, for Petitioners.

W. M. Shipsey, for Respondent.

HENSHAW, J.-In the course of the probate proceedings in the matter of the estate of Patrick Moore, deceased, the court made its order setting apart a homestead to the widow, with certain property as exempt from execution, and also awarded her a family allowance, all in accordance with sections 1465 and 1466 of the Code of Civil Procedure. Subsequently petitioners herein gave notice of intention to move for a new trial, and moved therefor, presenting for settlement a bill of exceptions to be used on said motion. The court refused to settle the bill and petitioners applied for mandate. In Leach v. Pierce, 93 Cal. 614, [29 Pac. 235], this identical question came before the court, and it was there decided that a motion for a new trial was not a proper procedure after an order for a family allowance had been made; that it is the duty of the court ex parte and without petition to

make such orders. What is there said is decisive of the question under this application.

It is, however, urged by petitioners that the bill should be settled as a bill of exceptions to be used upon their appeal from the order. If the circumstances permitted, this court would so hold, as was done in Leach v. Pierce, 93 Cal. 614, [29 Pac. 235]. But, treating the proposed bill of exceptions in this case as a bill of exceptions to be used on appeal from the order, its presentation was entirely too late.

The application for mandate is therefore denied.

Angellotti, J., McFarland, J., Sloss, J., Shaw, J., and Lorigan, J., concurred.

Rehearing denied.

[S. F. No. 3665. Department Two.-February 6, 1907.] MARK CALKINS, Respondent, v. SOROSIS FRUIT COMPANY, Appellant.

WATER-RIGHTS--CONVEYANCE OF LAND-APPURTENANT RIGHT - SUBSEQUENT DIVISION AND AGREEMENT-RIGHT TO DISPOSE OF SURPLUS WATER.-Where the owner of a farm having a water-right, for the purpose of irrigating the farm and disposing of the surplus water to other farms, sold and conveyed a part of the farm and a proportionate share of the water-right, with the right to convey the water across lands of the grantor to the lands of the grantee, and they subsequently divided the water by agreement, by means of flumes, so as to give an increased flow to the grantee, by the terms of which agreement they agreed to convey to each other the right to receive and use all the water that might flow in their respective flumes and ditches, and to share the proportionate expense of the main ditch to the point of diversion, and that the grantee's right should be appurtenant to his lands, as a part thereof, and for the benefit of said lands, the grantee has the right to dispose of the use of any surplus water flowing through his flume and ditch to owners of adjoining lands when not needed for full use on his own land. ID.-CONSTRUCTION OF AGREEMENT

"APPURTENANT"-"BENEFIT OF LAND."-The effect of the agreement making the water-right of the grantee "appurtenant to his lands," and "for the benefit of said lands," merely embodies the legal definition of an "appurte nance" to land given in section 662 of the Civil Code, making a

thing "appurtenant to land when it is by right used with the land for its benefit," and the expression "for the benefit of said lands'' merely couples with the word "appurtenant" its legal definition. ID.-COVENANT of Grantor to Grantee and SubsequenT OWNERS ONLY. —A covenant binding the grantor to the grantee and all subsequent owners of the land, "but to no other person or persons," does not at all have the effect to limit the grantee's use of the waters secured to him to his own lands exclusively, but is merely intended to prevent a transfer of the whole body of the water-right to any third person apart from a sale of the land.

ID. RIGHTS of Grantor NOT INFRINGED-ACTION BY GRANTEE To DeterMINE RIGHT TO USE OF SURPLUS WATER.-No rights of the grantor were infringed by the disposition by the grantee of the surplus water flowing in his flume and ditch; and where the grantor has wrongfully interfered therewith, and claimed the right to sell all surplus water, the grantee may maintain an action to have his rights to dispose of the use of his own surplus water determined.

ID. SPECIAL DAMAGES-INSUFFICIENT PROOF-LIMIT OF NEW TRIAL.The grantee has the right to recover special damages arising from the interference by the grantor with the grantee's right of disposition of surplus water, if clearly proved; but it is held that the proof is insufficient to show the amount of special damages awarded, and that a new trial must be granted on that issue only.

APPEAL from a judgment of the Superior Court of Santa Clara County. A. L. Rhodes, Judge.

The facts are stated in the opinion of the court.

W. P. Johnson, and E. E. Cothran, for Appellant.

Joseph H. Patton, for Respondent.

LORIGAN, J.-This appeal involves the question as to what extent plaintiff is entitled to control certain waters conveyed to him by defendant.

The record discloses the following facts: In October, 1893, defendant was the owner of a tract of land containing 247.37 acres, known as the "Sorosis Farm," bordering on the easterly side of Quito Creek, in Santa Clara County, and in that month built a dam across said creek and a diverting ditch upon its own lands, and thereby effectually diverted to its own lands, for the purpose of irrigating said "Sorosis

Farm," and also for the purpose of irrigating other lands in said county of Santa Clara owned by parties other than defendant, all the waters of said creek flowing therein ordinarily during all seasons of the year.

After such appropriation and diversion, and on July 22, 1896, defendant conveyed to plaintiff 40.37 acres of such "Sorosis Farm," and also the right to take from the said ditch of defendant, at the headgate thereof in said Quito Creek, so much of the water flowing therein to which defendant was entitled as should be represented by a fraction having for its numerator 40.37 and for its denominator 247.37 (about one sixth of said diverted water), together with the right to convey said water across lands of the defendant lying between the diverting ditch (which was on said land of defendant) and the lands conveyed to plaintiff.

Thereafter, and prior to January 16, 1902, the waters of said creek flowing in said ditch were applied to a beneficial use, namely, the irrigation of the respective lands of the plaintiff and defendant, on which there were growing and bearing orchards, and for the purpose of the irrigation of other orchard land, both riparian and non-riparian to said stream.

Immediately prior to January 16, 1902, plaintiff and defendant, in concert, built in said irrigation ditch a receivingbox and two certain flumes of uniform depth but of different width, one box being six feet in width, the other thirteen and a half inches, the larger one being known as defendant's flume, the smaller one as plaintiff's flume, the waters from the latter flume being conducted onto the lands of plaintiff by the ditch then existing across defendant's lands and mentioned in the deed of July 22, 1896. By the construction of the smaller flume plaintiff received in his ditch and conveyed to his land a somewhat larger quantity than he was entitled to under his deed-about one fifth of the water instead of one sixth. After the receiving-box and flumes had been constructed, and on January 16, 1902, plaintiff and defendant entered into a written agreement which recited that plaintiff had a right to a certain portion of the waters that flowed in said main irrigation ditch, and a right of way to carry the same across defendant's lands to the lands of plaintiff, and that for the purpose of dividing, apportioning, and