[L. A. No. 1633. Department Two.-March 25, 1907.]

THOMAS WILLIAMS, Appellant, v. FRITZ MYER, Respondent.

PRACTICE AMENDMENT OF COMPLAINT-IMPOSITION OF TERMS-APPEAL -APPROPRIATION OF WATER.-Where on the trial of an action to quiet title to the appropriated waters of a specified stream, the plaintiff, after a jury have been impaneled, asks leave to file an amended complaint setting up title by appropriation to the mingled and combined waters of such stream and another stream, in lieu of his claim of title to the waters of the stream specified in the complaint, it is within the discretion of the trial court, under section 473 of the Code of Civil Procedure, to allow the amendment, and to impose such terms as may be just; and the appellate court will not review the exercise of the discretion, but may review the justness of the terms imposed. And it is not necessary that the propriety of imposing terms should be shown by affidavits, where the motion for the amendment is made in open court, and the defendant resists it on the ground that if allowed he would not be able to go on with the trial, and that a continuance would be necessary.

ID. JUSTICE OF TERMS IMPOSED-PER DIEM AND MILEAGE OF GENERAL JURY PANEL.--In granting leave to file the amended complaint, under such circumstances, the court is limited in the imposition of terms to such only as are just,—that is, to such as will compensate the adverse party for the loss or inconvenience which he will suffer by granting the application,-and is not limited to imposing only such costs as might be properly taxed in the case. Within this rule the court may require the payment by plaintiff of the fees paid by the defendant for the per diem of jurors impaneled and sworn to try the case, the expenses incurred by the defendant in obtaining the attendance of witnesses and in the employment of attorneys, and his own expenses in attending the trial, but cannot, in addition, require the payment to the clerk of the court for the county of the per diem and mileage paid by and due from the county to the general panel of jurors summoned for the trial.

ID.-PAYMENT OF JUST TERMS.-If the court in fixing the terms for the granting of the amendment imposed the payment of an aggregate sum, some of the items of which are just and some unjust, it was not incumbent on the plaintiff to offer to pay the amounts which he deemed were properly assessed in order to avail himself of the error of the trial court in imposing the unjust items; nor is it material that the court might have refused to allow the amendment unconditionally.

ID.-GOOD FAITH OF AMENDMENT-REVIEW OF ORDER REFUSING AMENDMENT EVIDENCE.-In reviewing the refusal of the court to grant the amendment to the complaint unless the unjust terms were complied with, it must be assumed that the amendment was sought in good faith, and that the allegations in respect to the appropriation of the combined waters were true. And such error will not be deemed harmless, as there could be no trial of the cause on its merits, nor determination of the plaintiff's rights, by limiting the inquiry to the appropriation of the waters of the single stream specified in the complaint; and especially will the error not be deemed harmless where the defendant, on the cross-examination of the plaintiff's witnesses, and in introducing evidence in support of his own case, brought out the fact that the plaintiff's lands were watered by such combined waters, and the court again refused to permit the amended complaint to be filed in order that the pleadings and proof might conform.

APPEAL from an order of the Superior Court of Inyo County refusing a new trial. Walter A. Lamar, Judge.

The facts are stated in the opinion of the court.

P. W. Forbes, W. D. Dehy, and P. H. Mack, for Appellant.

S. E. Vermilyea, and B. H. Yandell, for Respondent.

LORIGAN, J.-This is an appeal from an order denying the motion of plaintiff for a new trial.

The action was brought by plaintiff to quiet his title to a hundred inches of water of Pine Creek, in Inyo County, measured under a four-inch pressure, and conducted through dams, ditches, natural channels, and watercourses to and upon the lands of plaintiff; said hundred inches being alleged to be one half of two hundred inches under said pressure diverted by plaintiff and the grantor of defendant, and equally divided by them and used on their respective lands. In addition, plaintiff prayed for an injunction restraining defendant from diverting more than one half of said waters, and for damages to his crops by reason of the alleged diversion by defendant of all of said waters.

Defendant, by answer, denied the right of plaintiff to any of the waters of Pine Creek, or to damages for the alleged diversion by him, and by cross-complaint alleged an exclusive prescriptive right acquired by his grantors, predecessors, and

himself to about two hundred and fifty inches, measured under a four-inch pressure, of the waters of said Pine Creek, and asked for a decree quieting his title thereto.

On November 20, 1899, (the original complaint having been filed February 1, 1899,) the cause was at issue, and thereafter was set down for trial on March 13, 1900; the trial to be had before a jury as advisory to the court on questions of fact. On the day set for the trial a jury was impaneled and sworn, and thereafter the plaintiff moved the court for leave to file an amended complaint. The difference between the proposed amended complaint and the original was, that in the original complaint the appropriated waters in litigation were stated to be "the waters of Pine Creek," while in the amended complaint it is alleged that plaintiff had diverted from the natural channel of Pine Creek more than a hundred inches of the waters thereof, measured under a fourinch pressure, and by means of dams, ditches, natural channels, and watercourses had conducted the said waters of Pine Creek from their natural channel to the natural channel of Horton Creek, and mingled the said waters with certain surplus waters flowing and being in the latter creek, and from thence conducted the said mingled and combined waters through the natural channel of said Horton Creek to a dam constructed by plaintiff across the channel of said Horton Creek, a short distance west of plaintiff's lands, where they were there equally divided between plaintiff and defendant, and from thence by ditches constructed by plaintiff he conducted one hundred inches of the said mingled and combined waters to his land.

In effect, the amended complaint differed from the original only in substituting "the mingled and combined waters of Pine Creek and Horton Creek" for "the waters of Pine Creek."

The defendant objected to the plaintiff being permitted to file the proposed amended complaint on various grounds— laches in presenting it for filing, want of notice of the motion to be permitted to do so, and that the amended complaint raised a new and distinct issue for the trial of which defendant had had no opportunity to prepare.

The court held that the plaintiff should be allowed to file said amended complaint, but only on terms, and the court

stated the terms as follows: "Plaintiff to pay to the clerk of this court for the county the per diem and mileage paid by it and due from the county, to jurors summoned for this trial amounting to the sum of $240.90; plaintiff to pay to defendant the sum paid by defendant to the clerk of this court for the fees of jurors amounting to the sum of twentyfour dollars; plaintiff to pay to the defendant the sum of $56.50 expenses incurred by the defendant in obtaining the attendance of witnesses; plaintiff to pay to defendant one hundred dollars as compensation to defendant for expenses he has incurred in employment of attorneys herein, his own expense in attending this trial, and the expense he has been to on account of this trial and that cannot be easily determined by the court or shown by the defendant,"-in all $421.40.

The plaintiff did not accept the terms, and hence did not file the amended complaint. He excepted, however, to each and every of the terms and conditions imposed by the court, and likewise to the ruling of the court imposing them, and the correctness of the action of the trial court on these matters is the question for present consideration.

Undoubtedly the court had the right in allowing the plaintiff to file his amended complaint to impose terms upon him. It is provided that in the discretion of the trial court such amendments may be permitted upon such terms as may be just. (Code Civ. Proc., sec. 473.) The discretion to allow the amendment was exercised by the trial court; it determined that a proper case for permitting the amendment to be filed was presented, and that no valid objection to the character of the proposed amendment existed. Whether that discretion was properly exercised is not a matter of concern here. The only point is whether in exercising such discretion the court imposed such terms as were just. It is insisted by appellant that the court was not warranted in imposing any terms at all. We cannot agree with him. It is true, as contended by plaintiff, that there was no express showing by affidavit that the filing of the amended complaint would occasion any delay in proceeding with the cause, or necessitate a continuance of the trial, or require the presence of witnesses other than those in attendance, or entail any additional expense to meet the new issue presented. But under the circumstances we think no such showing was necessary. The motion of plaintiff was

made in open court after the jury had been sworn and the trial about to be proceeded with. Without any notice of such application plaintiff sought permission to file his amended complaint on the ground that the original complaint of plaintiff did not fully state his cause of action. As presented, the amended complaint raised a new issue, upon which certainly different evidence would have to be presented than under the original pleading. The questions of the right of plaintiff to have his motion granted and the effect upon the progress of the trial by permitting it were immediately taken up and considered by the court, and in the presentation of the objections of defendant (which plaintiff did not question nor assert anything to the contrary), it was insisted that if the amendment were allowed the defendant would not be able to go on with the trial, and that a continuance would have to be had. This was a sufficient showing to invoke the discretion of the court, and warranted it in imposing such terms upon the plaintiff as the justice of the case required.

Now, as to whether the terms imposed on plaintiff were just, because, while under the statute the court is vested with discretion in imposing them, it is limited in the imposition to such only as are just. By this is meant that the terms imposed shall be such as will be just, considering the circumstances under which the amendment is asked, and particularly as between the parties to the action, such as will compensate the party for the loss or inconvenience which he will suffer by granting the application to amend. In imposing such terms it is not to be understood that the court is constrained to allowing a party only such costs as might be properly taxed in the case. A reasonable discretion may be exercised in compensating him for expenses to which he has been put, although they may not be recoverable as costs. (Pomeroy v. Bell, 118 Cal. 635, 638, [50 Pac. 683].) But whatever the terms, they should be such as have relation to expenses or charges incurred by the parties to the trial, or directly with reference to it, and be imposed with a view mainly of compensating the party prejudiced by granting the amendment.

Within this view it was proper for the court to require the payment by plaintiff of the fees paid by defendant for the per diem of jurors impaneled and sworn to try the case, and equally proper to require payment of the expenses incurred