gages, and to be paid ratably with the other | subject always to the qualification that the creditors upon the full amount of his debt, or dividends received from the general assets and whether he must first realize as much as he the amounts realized from the collateral securcan out of the premises comprised in his mort-ity shall not together exceed the amount due gages, and claim only upon the balance then the creditor upon his claim. It follows that remaining unpaid. It is the right of a mort- the county court erred in not deducting from gagee in this court [court of chancery] to pro- appellee's claim the amounts collected from ceed for the recovery of his debt upon all, or the collateral notes prior to the day on which one or more, of his securities, and either si- the proof of claim was filed, to wit, September multaneously, or in any order he thinks fit. 9, 1893. We are, however, unable to concur Accordingly, it is now settled that in the contention of appellants that payments the rule in bankruptcy does not prevail in collected upon the collateral notes after that this court, and that a mortgagee may prove date should be deducted in fixing the allowance in an administration suit, or a proceeding to be awarded to appellee as a basis for the decfor winding up under the companies' acts, for laration of dividends. In regard to the paythe full amount of his debt, realize what he can ment made on September 9, 1893, the burden in any such proceeding, and afterwards resort of proof was upon the party excepting to the to the premises mortgaged to him to obtain claim as filed to show what payments were payment of any deficiency. I shall made, as the fact of payment is matter of detherefore rule that the plaintiff is entitled to fense. Although the law will look into the prove his claim for the full amount against the fractions of a day when it becomes important general assets without being bound first to to the ends of justice to do so, or in order realize his mortgage securities. The time at to decide upon conflicting interests, yet the which the plaintiff's debt is to be ascertained is, general rule is that the law knows no as settled by Kellock's Case, that at which his fractions of a day. Grosvenor v. Magill, 37 claim was brought in under the posting for Ill. 239. The effect is to render a day a sort creditors. I shall therefore direct that the of indivisible point, so that any act done in the amount due to the plaintiff be ascertained as of compass of it is no more referable to any one that date, and in doing so he must be charged portion of it than to any other portion of it; with all sums theretofore received by him, and where two acts are done upon the same whether out of the mortgaged premises or day, they will, as a general thing, be regarded otherwise, but not with any sums subsequently in law as done at the same time. It follows received. On this sum he will be entitled to a that, where a case turns on the question as to ratable dividend, the estate being insolvent.' which of two things was done first, the party To the same effect are Ex parte Wildman, 1 having the burden of proof fails in merely Atk. 109; Re Hamilton, 1 Fed. Rep. 800; showing that both were done on the same day. Sohier v. Loring. 6 Cush. 537; Re Hicks, 19 N. 5 Am. & Eng. Enc. Law, pp. 89-91, and cases B. R. 299, Fed. Cas. No. 6,456; Re Meyer, 78 in notes. Hence, the appellant has not shown Wis. 615, 11 L. R. A. 841. that the payment made on September 9, 1893, was made before the filing of the proof of claim on that day, and consequently such payment should not be deducted. A motion is made by appellee to dismiss the appeal. The motion is overruled. The appeal was properly taken from the county court to the appellate court upon the authority of Union Trust Co. v. Trumbull, 137 III. 146, and Heinzelman Bros. v. Schrader, 150 Ill. 227. Our conclusion is that the amount upon which the secured creditor is entitled to receive dividends from the assets of the insolvent estate is the amount actually due to the creditor when he files his proof of claim or presents his claim under oath; that the subsequent hearing upon objections or exceptions should be directed to the inquiry as to what was due at that date; that the amount due at that date is to be ascertained by the deduction from the The judgments of the Appellate Court and the principal debt of all payments made before County Court are reversed, and the cause is rethat date, whether realized from collaterals or manded to the latter court for further proceedotherwise, but that amounts realized from col-ings in accordance with the views herein exlaterals after that date are not to be deducted, pressed. CALIFORNIA SUPREME COURT. William MCGUIRE, Respt., v. Marcellus BROWN, Appt. (106 Cal. 660.) claim of a settler for the purpose of materially changing the point of diversion and constructing new waterways through the land, although the settler has not made final proof of residence and cultivation or obtained a patent to the land, but has made an entry and has actual possession. 1. The prior appropriator of water has no right to enter upon the homestead 2. The privilege of changing the point NOTE.-Change of use or channel of water appropri- | place or manner of use of the water seems to be ated. The limitation upon the right of an appropriator of water upon the public domain to change the simply that he must not by so doing prejudice other rights which have been acquired subsequently to the acquisition of his rights. Subject to Messrs. W. E. Shepherd and Orestes Orr, for respondent: In so far as the construction of the new ditch is concerned, Crawford under the United States statute might do this, and the measure of relief to which Brown was bound was the compensation for any damage he might suffer by way of injury to his possession. U. S. Rev. Stat. 2339; Knoth v. Barclay, 8 Colo. 300. to the stream did not lessen his rights, and the The fact that he used it upon lands riparian rights of the defendant, a subsequent settler upon the land and appropriator of the water of the stream, were subject to plaintiff's rights to such water. Healy v. Woodruff, 97 Cal. 467; Denecochea v. Curtis, 80 Cal. 403; Southern P. Co. V. Burt. 86 Cal. 279; Western P. R. Co. v. Tevis, 41 Cal. 489; Farley v. Spring Valley Min. & I. Co. 58 Cal. 142; Osgood v. El Dorado Water & D. G. Min. Co. 56 Cal. 571; Lux v. Haggin, 69 Cal. 438. A homestead claimant has no riparian right as against an appropriator of water who is prior to him in point of time. South Yuba Water & Min. Co. v. Rosa, 80 Cal. 333; Burrows v. Burrows, 82 Cal. 564; Ramelli v. Irish, 96 Cal. 214. Britt, C., filed the following opinion: The controversy which resulted in this action arose between plaintiff and defendant concerning the right to the use of water flow. ing in Cuyama creek, in the county of Ventura. Ŏne W. A. Dorn was permitted to Sturr v. Beck, 133 U. S. 541, 33 L. ed. 761. In no just sense can lands be said to be pub-intervene, he asserting an interest in the lic lands after they have been entered at the land office and a certificate of entry obtained. Witherspoon v. Duncan, 71 U. S. 4 Wall. 210, 18 L. ed. 339. Entry means that act by which an individual acquires an inceptive right to a portion of the unappropriated soil of the country by filing his claim. Chotard v. Pope, 25 U. S. 12 Wheat. 586, 6 L. ed. 737; Shepley v. Cowan, 91 U. S. 330, 23 L. ed. 424; Farley v. Spring Valley Min. & I. Co. 58 Cal, 143; Western P. R. Co. v. Tevis, 41 Cal. 489; Hutton v. Frisbie, 37 Cal. 476. An appropriator may change the place of diversion if no one be injured by such change. Ramelli v. Irish, 96 Cal. 217; Jacob v. Lorenz, 98 Cal. 340. But in the case at bar it would diminish the amount defendant is entitled to, both as a riparian proprietor and as an appropriator; and such damage is clearly within the provision of 1412, Civil Code, "when others are not injured by such change," and within the equity and right of defendant to the relief demanded in this action. such limitation, the point of diversion and manner of use may be changed. Middle Creek Ditch Co. v. Henry, 15 Mont. 558; Junkans v. Bergin, 67 Cal. 267. An appropriator can extend his ditch at any time and use the water to the extent of his appropriation at any other point for the same or a different purpose. Woolman v. Garringer, 1 Mont. 535. After the claim for which the water was appropriated has been worked out the ditch may be water superior to that of both the original parties; but, as the court below found against his pretensions, and dismissed his complaint "without prejudice," and he has not ap pealed, his claims are eliminated from the case. It appears from the record that in January, 1885, one Beekman took possession of the N. W. of a certain section 20, the same being unappropriated lands of the United States, and shortly afterwards filed his declaratory statement as a pre-emption claimant thereon, paid the purchase price, and obtained the receiver's final receipt some time in the year 1886, and in June, 1891, the United States patent for the same was issued to him. At the time Beekman entered upon said land there was a ditch thereon, constructed by a former occupant, leading from a point on Cuyama creek, within the boundaries of the N. E. † of said section 20, and thence westerly across a part of such N. E. and upon said N. W. 1, by means of which ditch water was diverted from said creek, and made to flow upon the latter quar extended and the water used at other points. Davis v. Gale, 32 Cal. 26, 91 Am. Dec. 554. The original appropriator may construct a new ditch if the amount which it carries is not greater than the amount originally appropriated. Higgins v. Barker, 42 Cal. 233. The first appropriator may change the place of diversion, or the place where the water is used, or the use to which it was first applied, if others are not injured by the change. Ramelli v. Irish, 96 ter section. This ditch was repaired by Beekman in the spring of 1885, and was thenceforward used by him to divert said water for irrigation and other purposes on his said land,—it having a capacity, the court finds, of 90 inches, which was filled when the creek afforded sufficient water, and exhausted the flow of the creek at the point of diversion when the supply was less than that amount. In December, 1888, Beckman conveyed the land covered by his pre-emption claim, -said N. W. of section 20,-together with its appurtenances, to one Crawford, who entered into possession. Crawford then, in May, 1889, changed the point of diversion of the ditch to a place about 4 of a mile farther up the creek, eastward from the head of the old ditch, and dug a new ditch across the said N. E. 1, and upon the N. W. of said section 20, connecting with the old ditch near the west line of said N. W. 4. The new ditch had a capacity of 90 inches, as the court also found, and was used by Crawford on his lands from 1889 to 1891, inclusive, for the same purposes that the former ditch had been used by Beekman. January 20, 1892, Crawford conveyed to plaintiff by deed of grant said N. W. of section 20, together with all water rights possessed or acquired by the grantor "either by use, purchase, or appropriation." But in August, 1888, Brown, the defendant and appellant, a person qualified to acquire land under the homestead laws, settled upon said N. E. of section 20, it being then public land of the United States, and in October of the same year he filed his homestead application therefor in the proper land office, paying the fees of the receiver upon such entry and obtaining his receipt therefor. Ever since his settlement he has resided on the land, cultivating and improving considerable portions of it, but has not made final proof, nor received a patent for the same. When Crawford constructed the new ditch across defendant's homestead claim in 1889, defendant was temporarily absent therefrom, and gave no consent to the change; but on his return, soon afterwards, he made no complaint or claim of damage, and permitted the use thereof by Crawford and his successor, the plaintiff, until the month of October, 1892, when he filled up such new ditch at a point on his homestead claim, and stopped the further flow of the water, and by force prevented plaintiff from repairing the ditch. In November, 1889, defendant constructed a ditch tapping Reyes creek, a tributary of said Cuyama creek, on land in section 16, belonging to the state of California, at or near the point of confluence of the two streams, about mile above the head of the new ditch dug by Crawford in May of the same year, and thence leading to his (defendant's) homestead claim, said N. E. of section 20. By means of this ditch defendant diverted water from Reyes creek during the years 1890, 1891, and 1892, and used the same for irrigation and other purposes on his claim, not interfering with the flow of water to plaintiff's ditch during the first two of those years, but increasing the amount diverted during 1892 so as to materially lessen the quantity descending to plaintiff. Plaintiff then, in September, 1892, filled up defendant's ditch on said section 16, so that no water could pass into it from the creek. All the lands above mentioned lie in the same township and range, and are riparian to Cuyama creek. Plaintiff commenced this action May 4, 1893, to restrain defendant from interfering with the ditch and water rights acquired by plaintiff from Crawford, and for damages. Defendant answered, and also filed a cross complaint, setting up his claims to the water and to damages for plaintiff's invasion of his rights, and praying that plaintiff be restrained from interference with his use of the water, etc. After trial, the court rendered judgment determining that plaintiff has the paramount right to 90 inches of the water in Cuyama creek for all useful and beneficial purposes, to be diverted through the ditch constructed by Crawford in 1889, and is the owner of such ditch, with the right to maintain it across the homestead claim of ap pellant, and enjoining defendant from disturbing plaintiff's enjoyment of such rights. Also that defendant is entitled to take 90inches of water flowing at the head of his ditch in section 16 so long as the diversion of that quantity does not reduce the flow at the head of plaintiff's ditch below the same amount; that defendant has the right to maintain and use his said ditch to convey the water to which he is so entitled, and plaintiff is restrained from interference therewith. Plaintiff is awarded the entire flow of waterat and above the head of the Crawford (new) ditch when the quantity falls below 90 inches: also judgment for nominal damages and his costs. 1. The first and most important question arising on this record relates to the right of Crawford, plaintiff's predecessor in interest, to enter upon the land claimed by and in the possession of defendant, and, in the exercise of the right to change the point of diversion, there construct a new aqueduct, and lead the water through the same. For, if he had not the right to effect the change in this manner, then the defendant was not in the wrong when he obstructed the flow of the water in Cal. 214; Gallaher v. Montecito Valley Water Co. | into the river above the head of another ditch does 101 Cal. 242. A person entitled to divert a given quantity of water from a stream may take the same at any point on the stream and may change the point of deviation at pleasure if the rights of others are not injuriously affected by the change. Kidd v. Laird, 15 Cal. 161, 76 Am. Dec. 472. not prevent a subsequent change of place, although the effect is to carry it further down so that it is lost to the owner of such ditch. Wimer v. Simmons (Or.) 39 Pac. Rep. 6. Rights subsequently vested cannot be infringed. The point of diversion cannot be changed to the detriment of subsequent appropriators. Cole v. Logan, 24 Or. 304; Butte Table Mountain Ditch Co. If the water is appropriated for the purpose of placer mining and irrigation the fact that it is used at first at a place where the surplus will flow back | v. Morgan, 19 Cal. 609. the new ditch, and the judgment restraining | ing new waterways through the land? Is such him in that behalf, and establishing the right a license among the servitudes to which the of plaintiff "to have, maintain, keep, and land must be submitted? We think not. "In use" such new ditch for diverting and con- no just sense can lands be said to be public veying the water upon his (plaintiff's) land lands after they have been entered at the land is erroneous. The claim that Crawford, the office, and a certificate of entry obtained. If former ditch owner, was justified in shifting public lands before the entry, after it they the point of diversion and the line of his are private property." Witherspoon v. Dunditch in the manner here disclosed is based can, 71 U. S. 4 Wall. 218, 18 L. ed. 342. The mainly on the familiar provisions of the term "entry," as applied to appropriations of legislation of Congress (U. S. Rev. Stat. land within the scope of the language just $ 2339, 2340)* concerning the rights of ap-quoted, has been held to mean "that act by propriators of water on the public lands, and the saving of those rights in patents for such lands granted by the government; on section 1412 of the Civil Code of this state: "The person entitled to the use may change the place of diversion if others are not injured by such change" and on certain cases in this court, which will be noticed farther on. proper United States land office, and that his entry remains intact. Crawford, a witness for plaintiff, testified: When I went there in 1888. Brown was on the northeast of section 20, and, I think, had a house. When I made the which an individual acquires an inceptive right to a portion of the unappropriated soil of the country by filing his claim." Sturr v. Beck, 133 U. S. 547-549, 33 L. ed. 764; citing Chotard v. Pope, 25 U. S. 12 Wheat. 588, 6 L. ed. 738; Hastings & D. R. Co. v. Whitney, 132 U. S. 357, 33 L. ed. 363. It appears from the evidence in this case that on We do not think that the right of the settler October 22, 1888, the defendant made entry under the Federal homestead laws on public (within the meaning of the authorities reland through which water flows is of the un-ferred to) of the land in question in the substantial character which the contention of the respondent implies. Of course, if a valid appropriation of the water, whether on the particular tract or off it, has been made, the settler must take the land subject to that qualification of his right and of the title which he may ultimately acquire; but it should not be held that such qualification involves the indefinite extension of the right of the prior appropriator, unless the law is thus plainly written. It is of the highest importance to the bona fide settler on riparian lands to know the extent to which he must subordinate his claims to those of prior aptivation, he will be entitled to a patent which propriators of the water; to know, in short, what easements and servitudes his land is subject to in favor of the previous appropriation. Has the prior appropriator license to enter upon the homestead claim of such a settler for the purpose of materially changing thereon the point of diversion and construct change in my ditch, Mr. Brown was in possession of his land. We had a fence between us, so I ran with my new ditch through his fence." Here was an entry, and here was an actual possession of the land by defendant. In course of time, and on compliance with the law relative to continuous residence an 1 cul will invest him with the legal title. Now, it cannot be that, pending proceedings for the consummation of his interest thus initiated, any other person may rightfully invade his possession for the purpose of making an original appropriation of water, and so possibly devesting the land of its chief element of value, any more than for the purpose of cutting off its timber or committing other trespass. This proposition is substantially L. ed. 761, where the Supreme Court of the United States affirmed the doctrine that the plaintiff in that case had "no right to enter upon the prior possession of the defendant under his homestead entry for the purpose of *Sec. 2339. Whenever, by priority of possession, rights to the use of water for mining, agricultural, manufacturing, or other purposes, have vested and accrued, and the same are recognized and ac-adjudged in Sturr v. Beck, 133 U. S. 541, 33 knowledged by the local customs, laws, and the decisions of courts, the possessors and owners of such vested rights shall be maintained and protected in the same; and the right of way for the construction of ditches and canals for the purposes herein specified is acknowledged and confirmed; but whenever any person, in the construction of any ditch or canal, injures or damages the posses-appropriating any portion of the running sion of any settler on the public domain, the party committing such injury or damage shall be liable to the party injured for such injury or damage. "Sec. 2340. All patents granted, or pre-emption or homesteads allowed, shall be subject to any vested and accrued water rights, or rights to ditches and reservoirs used in connection with such water rights, as may have been acquired under or recognized by the preceding section." streams and creeks thereon." But what is the difference in the legal wrong to the defendant between an entry on his homestead, with a view to appropriating for the first time the water there flowing, and an entry having for its object the material shifting of the place of a previous diversion, and the construction The point of diversion cannot be changed so as | by changes in the bed of the stream it has become to cut off the flow to a mill which has been established after the first appropriation. Columbia Min. Co. v. Holter, 1 Mont. 296. Persons who have appropriated the water for a mill cannot after other persons have appropriated what flows past the mill change the use so as to consume all the water. Ortman v. Dixon, 13 Cal. 33. After other claims have been located the owner of a dam cannot raise it to their prejudice although impossible to obtain the original quantity of water If the appropriation is for a certain ranch, whatever is not wanted for irrigation and household purposes thereon may be appropriated by another person, and the first appropriator cannot after of new waterways to make the diversion | ceeding in good faith under the homestead laws effectual? Either purpose, if carried out, to perfect his title,-impossible, that is, without must interrupt the quiet of his enjoyment, the consent of such settler. This court, speakand deprive him of the use and control of ing through Mr. Justice Harrison, said resome portion of his property. cently: "That section [U. S. Rev. Stat. 2339] does not confer the right to enter upou pose of securing the water thereon, or of completing an attempted diversion of water, even though the person seeking so to enter had at some previous time manifested his intention to secure a water right thereon.” Taylor v. Abbott, 103 Cal. 424. As little does it, in our opinion, confer the right to enter upon the possession of another for the purpose of materially changing the point of diversion of water already appropriated; certainly not for the purpose of constructing new aqueducts where none existed before. By the terms of the proviso found in section 9 of said act of July, 1866, it is declared that whenever after the passage of this act any person or persons shall, in the construction of any ditch or canal, injure or damage the possession of any settler on the public domain, the party committing such injury or damage shall be liable to the party injured for such injury or damage:" and respondent claims that such provision authorized the construction of the new ditch by plaintiff's predecessor, and that defendant's right is limited to compensation for the damage therein mentioned. This is not the proper construction of the proviso. It does not grant rights of way where none existed before, nor confer additional rights upon owners of ditches subsequently constructed. Jennison v. Kirk, 98 U. S. 460, 25 L. ed. 243; Robertson v. Smith, 1 Mont. 411. If it be said that by the 9th section of the act of Congress of July 26, 1866, now em-lands in the possession of another for the purbodied in section 2339 of the Revised Statutes of the United States vested and accrued rights to the use of water for beneficial purposes, acquired by priority of possession thereof on the public lands, are to be maintained and protected as against homestead settlers on those lands, and that the right of way for the construction of ditches for such purposes is acknowledged so long as they are in any sense "public lands," and before a patent has issued for the same, and hence that defendant took up his land subject to those reservations in favor of the prior appropriator, and the consequent right of the latter to change his system of works at will, it may be repliedFirstly. That the argument, if good for any thing, proves too much; for by the terms of section 2340 of the Revised Statutes of the United States, - -a re-enactment of section 17 of the act of July 9, 1870, upon this subject, – the same exceptions and reservations are de clared to qualify all patents granted as well as all homesteads allowed; so that the right of the prior appropriator of the water to make such use of the land of the homestead claimant would not cease with the issue of a patent to the latter, but must continue indefinitely, a result which even the cases relied on by respondent discountenance. 08good v. El Dorado Water & D. G. Min. Co. 56 Cal. 571; Farley v. Spring Valley Min. & I. Co. 58 Cal. 142. Secondly. It is only “vested and accrued" rights to the use of water which are reserved by the operation of the acts of Congress above referred to from the interest that without those provisions would vest in the homestead claimant; and the only vested and accrued right which Crawford had in the land at the time defendant made his homestead entry was the right to the continued flow of the water into his existing canal to the extent of his prior ap. propriation, including, of course, the right to maintain and improve such canal. True, he had the privilege of changing the point of diversion if he could do so without injury to others (Civ. Code, § 1412; Ramelli v. Irish, 96 Cal. 217); but such privilege is a different thing from the "vested and accrued" right to the use of the water. It is not a part of that right; and the condition upon which it can be exercised to any material extent becomes impossible when another person has made a lawful settlement on the land affected, and is pro wards increase his use so as to deprive the latter of the benefit of his appropriation. Byrne v. Crafts, 73 Cal. 641. Does the fact that defendant has not made final proof of residence and cultivation, or obtained a patent, affect the case? In Sturr v. Beck, supra, the court quotes with approval this language of Attorney General MacVeagh in an opinion rendered by him in 1881: “Upon the entry the right in favor of the settler would seem to attach to the land, which is liable to be defeated only by failure on his part to comply with the requirements of the homestead law in regard to settlement and cultivation. This right amounts to an equitable interest in the land subject to the future performance by the 'settler of certain conditions (in the event of which he becomes invested with full and complete ownership); and until forfeited by failure to perform the conditions, it must prevail, not only against individuals, but against the government.' And in the course of the same decision the court says further: "When, however, the government ceases to be the sole proprietor, the right of the riparian owner attaches, and can | cannot afterwards change or extend his use to the prejudice of the other. Proctor v. Jennings, 6 Nev. 83, 3 Am. Rep. 240. Where a person has acquired by appropriation a limited right of diversion of water and has lost further claim to an appropriation by failure to complete his work within a reasonable time, he cannot increase the amount of his diversion there The first appropriator has a right to all water appropriated by him as against subsequent appropriators, and has a right to erect dams and divert water before any subsequent appropriation, but not to make any new dams or diversion of water after a subsequent appropriation. Lobdell v. Simp-after to correspond with his notice of appropriation son, 2 Nev. 274, 90 Am. Dec. 537. A second appropriator acquires a right to all the surplus left by the first appropriator, and the first to the prejudice of the rights of a riparian owner. Conkling v. Pacific Imp. Co. 87 Cal. 296. The appropriator of water to be used at a speci |