entirely valueless." We fail to see any connection between the two cases. On the contrary, so far as we can discover from the record, they are entirely independent, and the judgment in the one case would in no way be affected by the judgment in the other. This being so, the contention of appellant, in this regard, cannot, in our opinion, be sustained.

It is further urged that, as the statement in the affidavit to the effect that the affiant was informed and believed that Judge Campbell had said he considered himself disqualified from trying any case in which the ap pellants were parties was not answered or denied, it amounted to, and should be treated as, an admission that he was not qualified to try this particular case, and hence his order should be reversed. In support of this posi tion, counsel say: "Judge Campbell knew better than any one else whether or not he was so interested in this case, by reason of the litigation he was prosecuting against the plaintiff in this case, as to consider himself disqualified from trying this case. As was said by the supreme court of Nevada in the case of Table Mountain Gold & Silver Min. Co. v. Waller's Defeat Silver Min. Co., 4 Nev. 222: The knowledge of the judge would be more certain and satisfactory than any evidence. As a general thing, a judge must know, better than any other party, whether he is or not interested in the result of a suit before him.'" The rule of law as thus stated is undoubtedly correct, but we draw from it a different conclusion from that drawn by the learned counsel. The law presumes "that official duty has been regularly performed," (section 1963, subd. 15, Code Civil Proc.,) and, as Judge Campbell knew whether or not he was interested in the result of the case, it must be presumed, from his action in denying the motion, that he was not so interested. In the Nevada case cited, which was in all material respects like this, it was said "that in all motions before a judge, during the progress of a trial, he may act on his own knowledge in regard to things which, in their nature, are better known to himself than they could be to others." We advise that the order appealed from be affirmed.

We concur: VANCLIEF, C.; SEARLS, C. PER CURIAM. For the reasons given in the foregoing opinion, the order appealed

from is affirmed.

SOUTHERN CALIFORNIA MOTOR ROAD
CO. v. MERRILL et al. (No. 19,145.)
(Supreme Court of California. Nov. 10, 1893.)
Department 2. Appeal from superior court,
San Bernardino county; John L. Campbell,
Judge.

Action by the Southern California Motor Road Company against Samuel Merrill and others. From an order denying its motion for a change of venue, plaintiff appeals. Affirmed.

R. E. Houghton, for appellant. Rolfe & Freeman, Conner & Evans, W. P. Gardiner, Purington & Adair, and Willis, Cole & Craig, for respondents.

PER CURIAM. This case is like that of Southern Cal. Motor Road Co. v. San Bernardino Nat. Bank, (No. 19,139,).34 Pac. Rep. 711, (just decided,) and was submitted upon the same briefs on the part of the appellant. Upon the authority of that case, the order appealed from is affirmed.

1. A notice of motion for a new trial, directed against the "findings" rather than against the "decision" of the court, is sufficient, as under Code Civil Proc. §§ 632, 633, the findings constitute the decision.

2. In an action for partnership accounting defendant filed a "cross complaint" which related to the partnership transaction set forth in the complaint, alleged the partnership contract in somewhat different terms, and contained only matters in avoidance, or constituting a defense or counterclaim. Held, the averments of the cross complaint were not admitted by failure of plaintiff to answer, as the cross complaint was really an answer to the complaint, and therefore its averments were deemed controverted under Code Civil Proc. § 462.

3. The evidence was insufficient to justify findings in accordance with the averments of the cross complaint where the evidence on the part of plaintiff was positive that there was no such contract between the parties as that alleged in the cross complaint, and defendant merely testified that the cross complaint was

rue.

Commissioners' decision. Department 1. Appeal from superior court, Del Norte county; James E. Murphy, Judge.

Action by Daniel Haight against Dennis Tryon for partnership accounting. From a judgment for defendant, and an order deny. ing a new trial, plaintiff appeals. Reversed. R. W. Miller, for appellant. L. F. Cooper and Sawyer & Burnett, for respondent.

BELCHER, C. This is an action for an accounting between partners. The material facts set out in the complaint may be briefly stated as follows: On or about the 1st day of March, 1885, the plaintiff and defendant, at the county of Del Norte, in this state, entered into a verbal contract whereby they agreed to go into the business of buying, slaughtering, and selling beef cattle and mutton sheep, and to divide the profits of the usiness equally between them. In pursuance of this contract they commenced the said business, and carried it on until February, 1888, when they discontinued it. Plaintiff put into the business a certain amount of money and a certain number of cattle and sheep and certain merchandise, and the defendant put in a certain amount of money and a certain number of cattle and sheep. From the sales the plaintiff received a cer tain sum of money, and the defendant a

larger sum. During the continuance of the business the animals were all disposed of except four head of cattle, of the value of $100, which defendant converted to his own use. No accounting has ever been had, and there is left in the hands of defendant the sum of $3,799.84, and $100 for the said cattle appropriated by him to his own use, one-half of which sums is due and owing to the plaintiff; wherefore plaintiff prays for an accounting and judgment. The defendant answered the complaint, denying that he entered into the contract set out therein, and averring that on or about the 20th day of February, 1885, at the county of Curry, state of Oregon, plaintiff and defendant entered into a verbal contract whereby they agreed to furnish Charles Tryon and Ben Adams money, cattle, and sheep that they might enter into the business of buying, pasturing, selling and slaughtering beef cattle and sheep; that the profits and losses were to be shared equally between plaintiff and defendant after defendant Tryon should receive from plaintiff Haight $1,000 per year for the use of his ranch in Curry county, Or. Then follow denials of most of the other allegations of the complaint, and an averment that defendant put into the business the sum of $7,000. The answer prayed for an accounting, and that defendant have judgment against the plaintiff for the amount found due. At the time of filing the answer the defendant also filed a separate paper, denominated a "crosscomplaint," in which he set forth that on or about the 20th day of February, 1885, at the county of Curry, state of Oregon, plaintiff and defendant entered into a verbal contract whereby they agreed to furnish Charles Tryon and Ben Adams money, cattle, and sheep for them to enter into the business of buying, slaughtering, and selling cattle and sheep; that the cattle and sheep were to be kept on Lone ranch, a large farm in said county of Curry, then and up to November, 1888, owned by defendant, and out of the said business defendant was to receive first $1,000 per year for the use of the ranch or farm, and, after said sum was paid to him, then plaintiff and defendant were to share between them the profits and losses of such furnishing; that the said business was carried on by Charles Tryon and Ben Adams up to about the month of August, 1885, when plaintiff and defendant, finding they were losing money, took it away from them, and continued and carried it on on their own account and in their own names until November 5, 1888; that the ranch was so used from February 20, 1885, to November 5, 1888, and defendant received no rent therefor; that, in addition to the use of the ranch, defendant advanced money, cattle, and sheep to carry on the business, amounting with the rent of the ranch to $7,000; that the plaintiff did not advance to carry on the business in money, cattle, and sheep over $1,057.55, and that there is due from plaintiff

to defendant, under their agreement, the sum of $5,942.45; that the business was conducted at a loss, and was discontinued on November 5, 1888, and that no accounting has ever been had; that three head of cattle remain undisposed of, one in possession of plaintiff and two in possession of defendant. The defendant then prays for an accounting of all the transactions between the parties; that he have judgment against the plaintiff for $5.942.45; that any property remaining be sold, and the proceeds paid into court; and for general relief. The plaintiff demurred to the cross complaint upon the ground that it did not state facts sufficient to constitute a cause of action, and the demurrer was overruled. No answer to the cross complaint was filed. Upon the issues thus framed the case was tried, and the court found that there was due from the plaintiff to the defendant the sum of $2,500; for which sum judgment was entered in favor of the defendant. From this judgment, and an order denying his motion for a new trial, the plaintiff appeals.

The notice of motion for a new trial stated that the motion would be made upon the grounds, among others, "that the evidence is insufficient to justify the findings," and "that the findings are contrary to the evidence." It is claimed by the respondent that such a notice should be directed against the "decision" of the court, and not against the findings, and hence that the notice was in; sufficient, and the motion was therefore properly denied. This claim is clearly untenable. Under our statute the findings constitute the decision, (sections 632, 633, Code Civil Proc.; Sawyer v. Sargent, 65 Cal. 259, 3,Pac. Rep. 872,) and it has been held that such a notice as that given here complies with the requirements of the Code and is sufficient. Tunnel Co. v. McKenzie, 67 Cal. 485, 8 Pac. Rep. 22.

It is further claimed that the cross complaint was a proper pleading in the case, and, no answer to it having been filed, that its averments were admitted, and no evidence in support of them was necessary; and hence that the findings cannot be assailed for want of evidence to justify them. And upon this theory the court below seems to have based its decision, the principal averments and findings, except as to the amount due, being in almost identically the same language. This claim is also, in our opinion, untenable. The so-called "cross complaint" was not in fact, as we think, a cross complaint, or anything more than an answer. It related to the transaction set forth in the plaintiff's complaint, the partnership between the parties, though alleging in some respects different terms, and contained only matters in "avoidance or constituting a defense or counterclaim," and was deemed to be controverted by the opposite party. Section 462, Code Civil Proc. And the fact that it was called a "cross complaint" did not make it one. It is

immaterial what the defendant called his pleading. Whether he designated it an "answer" or "cross complaint," its character will be determined by the court from the facts set up. Holmes v. Richet, 56 Cal. 307; Meeker v. Dalton, 75 Cal. 156, 16 Pac. Rep. 764; Mills v. Fletcher, (Cal.) 34 Pac. Rep. 637. The only question remaining, which need be considered, is, did the evidence justify the findings? We do not think it did. The evidence was oral and documentary and was quite voluminous. To state it briefly would require considerable space, and subserve no useful purpose. On the part of the plaintiff it was positive that there was no such contract between the parties as that alleged by the defendant, so far as it related to Charles Tryon and Ben Adams, and to the rent of defendant's Oregon farm, and we are unable to find anything on the other side which can be said to raise a substantial conflict upon these issues. The brief statement by defendant, as a witness, that the cross complaint was true did not, in our opinion, have that effect. It follows that the judgment and order should be reversed, and the cause remanded for a new trial.

We concur: TEMPLE, C.; VANCLIEF, C.

PER CURIAM. For the reasons given in the foregoing opinion the judgment and order are reversed, and the cause is remanded for a new trial.

(100 Cal. 310)

CLYNE v. BENICIA WATER CO. (No. 18,109.) (Supreme Court of California. Nov. 10, 1893.) WATER RIGHTS-WHEN APPURTENANT TO LAND

ENFORCEMENT.

De

1. Defendant water company made a contract with the owner of land on a stream, whereby the latter conveyed to it the right to take water from the stream, and to maintain a main water pipe through her land; in consideration of which, defendant agreed to put a oneinch tap in said main pipe, wherefrom the landowner could draw, free of cost, the water needed for irrigation and domestic purposes. fendant supplied such water as would flow through the tap mentioned, but laid no pipe through the land. Some years later, the land was sold under a mortgage placed thereon prior to the above agreement, and conveyed to plaintiff. Held, that the right to such water would flow through the inch tap was appurtenant to the land, and passed to plaintiff.

as

2. Since the agreement between defendant company and the landowner gave the former the right to appropriate any or all waters of the stream, it was necessary for defendant to restore any water so taken from the stream, before being able to contend, as a defense to an action for specific performance of the contract to supply water, that, by the foreclosure and sale thereunder, it had lost all the riparian rights acquired under the agreement, and that, hence, the consideration therefor had failed.

Commissioners' decision. Department 2. Appeal from superior court, Solano county; A. J. Buckles, Judge.

Action by James Clyne against the Benicia Water Company. From a judgment for plaintiff, defendant appeals. Modified.

James D. Thornton and George A. Lamont, for appellant. R. E. Houghton and John Lynch, for respondent.

TEMPLE, C. Action to enforce specific performance of an agreement. The judgment was for plaintiff, and this appeal is upon the judgment roll. The findings show that July 5, 1883, Eliza D. Nichols was the owner of a tract of land in Solano county, bordering a natural water course known as "Paddy Ranch Creek." She and her grantors had for 10 years used the water of said creek for domestic purposes, and for irrigating about four acres of land, part of said tract. That July 5, 1883, said Nichols executed a mortgage, whereby she mortgaged said land to one Boynton to secure a loan to her of $7,000 and interest, which mortgage was on that day duly recorded. That defendant, being a water company, desired to construct a reservoir on Paddy creek, above the lands of Nichols, and with that view, November 5, 1883, entered into an agreement with said Nichols as follows: "This agreement, made this 5th day of November, 1883, between Eliza D. Nichols, of the county of Solano, state of California, party of the first part, and the Benicia Water Company, a corporation duly organized under the laws of the state of California, party of the second part, witnesseth, that the said party of the first part, in consideration of the covenants on the part of the said party of the second part hereinafter contained, hereby grants to the said party of the second part the right to lay and maintain a main water pipe through the land now owned and occupied by said first party, and the said first party hereby waives all right to the flow of water in Paddy Ranch creek. And the said party of the second part, in consideration of the covenants of the said party of the first part, hereinbefore mentioned, agrees to and with said party of the first part: (1) To put ɔ one-inch tap in said main pipe at such point on the premises as said party of the first part may direct, from which tap said first party may draw, free of cost, all the water required by her for domestic purposes, and for the irrigation of her vegetable garden, containing about four acres of land. (2) To pay said party a fair and reasonable compensation for any damages that may be done to the vines and fruit trees of said first party in laying and maintaining said main water pipe; the amount of damages, if any, to be determined by arbitration. (3) That said water pipe shall be laid at a depth of two and a half feet below the surface of the ground on said premises. In witness whereof, the said parties have hereunto set their hands and seals the day and year first above written. Signed in duplicate. [Seal.] Eliza

D. Nichols. [Seal.] The Benicia Water Company. By Andrew Goodyear, President." The agreement was not recorded. The defendant, in accordance with the terms of the agreement, proceeded to supply the Nichols ranch with water, furnishing the full amount that would flow through an inch tap, but laid no pipe on the Nichols ranch. March 19, 1889, Boynton commenced an action to foreclose his mortgage, but defendant was not made a party to such suit. A judgment and decree was duly entered, foreclosing the mortgage, and the property sold in pursuance of it April 29, 1889, and, no redemption having been made, a deed was executed accordingly, and the grantee went into possession. The foreclosure was in all respects regular, and conveyed the title of Eliza D. Nichols to the grantee. Defendant continued to supply water in accordance with the contract until March 29, 1890, when it closed the tap for that ranch, and refused to turn it on again, denying the plaintiff's right. Plaintiff owns the Nichols ranch through the foreclosure proceedings, and has no other title.

It

The answer denies certain allegations of the complaint, and sets up certain facts, from which appellant argues that there was a total failure of consideration for the defendant's undertaking. No rescission is averred or found. Defendant's position, at the trial, seems to have been that the right of Eliza D. Nichols under the contract did not pass to plaintiff as an appurtenance. is not averred or found that defendant furnished water through a pipe on, or conducted to, the Nichols ranch. The agreement was to put a one-inch tap in its mains, from which Eliza D. Nichols could draw all the water required for certain purposes on the Nichols ranch. It is found that defendant did, "in acordance with the terms of said contract, and up to the time the tap was closed, supply and furnish from its main pipe, and through said tap, all the water necessary and required," and that the amount so furnished and necessary was all that would flow through the one-inch tap placed on the main pipe by defendant. The water was used on the Nichols ranch for more than five years. We must presume that such an amount of water was conducted to the ranch in some kind of a channel or pipe. Whichever it was, it would constitute an appurtenance to the Nichols ranch, and the right to it, including the flow of water from the main, passed under the conveyance to plaintiff. Farmer v. Water Co., 56 Cal. 14.

Appellant argues that in consequence of the foreclosure of the mortgage, and the sale thereunder, defendant lost whatever riparian rights it acquired from Nichols; that it was a failure of consideration, through the fault of the plaintiff and his grantors. This may be so and, if so, would have entitled the defendaut to rescind; but it did not offer to re

scind, and restore to plaintiff everything of value which it acquired under the contract. Counsel says it has nothing which it received under the contract, because plaintiff owns all riparian rights which belonged to the Nichols ranch as completely as Nichols did before the contract was entered into. But this idea of restoration will not do. By the contract, defendant had the right to appropriate all the waters of Paddy Ranch creek, and deprive the Nichols ranch of the flow which it was entitled to as riparian lands. Whether defendant has, as a fact, appropriated such waters, does not appear, and it was not necessary that it should be made to appear, because rescission was not pleaded. If the defendant has taken the water from the creek under the contract, it must restore it, as a condition of rescission. The mere fact that plaintiff can sue for it is not enough. If that were the rule, restoration need never be required, for mere rescission will always give that right. It must deliver the goods, except in some peculiar cases where it is excused.

Counsel says, further, that to compel specific performance, under the circumstances, would be inequitable. By bringing the suit, plaintiff affirms the contract made by Nichols. Still, if defendant had made such issue at the trial, I have no doubt the trial court would have required a conveyance of the riparian right as a condition of the relief granted. Had plaintiff refused to confirm the transfer of riparian rights, I think relief should have been refused. I see no harm to any one in requiring it now, and recommend that the judgment be modified to that effect. I think, however, appellant is not entitled to costs on this appeal.

LILLIS et al. v. PEOPLE'S DITCH CO. (No. 13,807.) (Supreme Court of California. Nov. 10, 1893.) RES ADJUDICATA-QUESTIONS DETERMINED-DIVERSION OF WATER.

Suit was brought to restrain a ditch company from diverting water from a slough. Defendant alleged that it had acquired a prescriptive right to divert, by means of a ditch of given dimensions, a certain number of feet per second. The court found merely that defendant had acquired the right to divert sufficient water to fill such a ditch without specifying the number of feet which might thus be diverted,