see how he can defend against any appropriate action which the law gives to such case. On the whole we are of the opinion that the action is properly brought against the defendant.

It is also claimed that the complaint is insufficient, because, while the judgment is in favor of James M. Reynolds as administrator of the estate of W. W. Reynolds, deceased, the complaint fails to show that the estate of W. W. Reynolds ever owned any interest in the property. It is apparent, and is admitted, that the pleader intended to bring the action in the name of the administrator of the estate and for the estate. If the complaint is defective for not showing with sufficient certainty whether the title was in the estate or in the administrator, it was a defect for uncertainty, and should have been taken advantage of by special assignment in the demurrer. It was not reached by a general demurrer.

The last point presented is that there was a misjoinder of parties plaintiff, because the cause of action in favor of the estate of Reynolds and the cause of action in favor of Newell were several and distinct and not joint. The averment is that the plaintiffs owned seven tenths of the canal. The legal presumption is that they owned it as tenants in common. By statute in this State it is provided that all persons holding as tenants in common, joint tenants or coparceners, or any number less than all, may jointly or severally bring or defend any civil action for the enforcement or protection of the rights of such party. If one of the tenants be dead his executor or administrator may be joined with the other tenants: Touchard v. Keyes, 21 Cal. 208.

Notwithstanding the action was for damages, it was clearly for the enforcement of the rights which the plaintiffs had as tenants in common.

Judgment affirmed.

Mr. Justice CROCKETT did not express an opinion.

BARKLEY V. TIELEKE ET AL.

(2 Montana, 59. Supreme Court, 1874.)

Relief in equity for disputed water-rights. When two parties each claim the prior right to the use of water for mining purposes, equity seems to be the only appropriate remedy to afford relief.

2 Conveyance of water. A water right is, under the law of Montana, "such a species of realty as to require for its transfer the same form and solemnity as the conveyance "of other real estate."

3 Void deed-- Abandonment-Appropriation. Where the owner of a ditch attempts to convey the same by a deed which is void, but places the grantee in possession, who continues to use the ditch-it operates as an abandonment of his appropriation by the grantor and as a new appropriation by the grantee, dating from the change of possession.

4

Recaption of abandoned water. The prior appropriator is estopped from asser ting a claim to water after it has been abandoned by him and recaptured by another.

Possessor of water right may have injunction. A party in possession of a ditch and the water incident to the ditch, has such an equitable interest therein, that he can maintain an action for injunction against a party who attempts to appropriate the same.

Appeal from the District Court of Jefferson County, First Judicial District.

66

The judgment in this action was rendered by SERVIS, J., who tried the cause without a jury. The opinion refers to the following sections of the act relating to conveyances of realty." Every conveyance in writing, whereby any real estate is conveyed, or may be affected, shall be acknowledged or proved and certified in the manner hereinafter provided." Cod. Sts. 396, § 3. "The term 'real estate,' as used in this act shall be construed as co-extensive in meaning with lands, tenements, hereditaments and possessory titles to public lands in this Territory." Cod. Sts. 402, § 34.

S. ORR and TOOLE & TOOLE, for appellant.

G. G. SYMES and CHUMASERO & CHADWICK, for respondents.

1 Derry v. Ross, 1 M. R. 1.

2 Park's Canal Co. v. Hoyt, 57 Cal. 44; Patterson v. Keystone Co., 30 Cal. 360; Post SALE.

3 Copper Hill Co. v. Spencer, 3 M. R. 267; Smith v. O'Hara, 1 M. R. 671. 4 Lytle Creek Co. v. Perdew, 1 West Coast R. 866.

SERVIS, J.

The plaintiff appeals to this court from the judgment of the court below, refusing a perpetual injunction.

The plaintiff and defendants both owned valuable mining ground, below Indian creek, in Jefferson county, Montana Territory, and owned ditches conveying the waters therefrom to said mining ground. The plaintiff's ditches were known as the "Freeman ditch" and the "Cedar gulch ditch." The defendants' was known as the "Tieleke ditch." Both claimed prior right to the waters of said creek. The findings of the court below sufficiently state the facts, which findings are as follows:

"First.

The Freeman ditch was constructed in 1866 and diverted and appropriated 100 inches of the waters of Indian creek in that year.

"Second. The Cedar gulch ditch was constructed in the year 1867, and diverted and appropriated 150 inches of water from said Indian creek in that year.

"Third. That the Tieleke ditch was constructed by defendants in the year 1868, as original appropriators and diverted and appropriated 500 inches of water from said Indian creek in that year.

"Fourth. That both of said first-mentioned ditches were constructed by various persons other than the plaintiff or his immediate grantors, prior to the construction of the said Tieleke ditch, whereby the defendants sought to and did take the waters from said Indian creek against the will of the plaintiff after his purchase of the first-named ditches.

"Fifth. That the plaintiff and defendants respectively own valuable mines of gold, upon which they desire to use said water, and the said mines and ditches are comparatively worthless without the use of said water.

"Sixth. That the water of said Indian creek, during a good portion of the mining season, does not exceed 150 inches, and during some portions of the mining season does not exceed 250 inches of water; and that the respective claims of the parties are hostile, and for a great portion of the mining season one must give way to the other.

"Seventh. That the various persons constructing the Cedar gulch ditch and the Freeman ditch, by certain unsealed

and unacknowledged paper writings, purported to convey their respective interests therein to certain persons other than the plaintiff's grantors, but who, thereafter, and in like mauner, by like paper writings, transferred the same to plaintiff's grantors, who took possession thereunder (and not by appropriation) prior to the appropriation and construction of the Tieleke ditch, who thereafter conveyed the same to plaintiff.

"Eighth. That one Freeman (to whom a part of the same had been so conveyed), in the year 1870, by deed duly exeecuted, acknowledged and delivered, conveyed all his interest in said ditches to the plaintiff; and that Wilcox and Doughty (to whom the balance had been so conveyed), on the 6th day of September, 1870, by deed, conveyed all their interest in said ditches and water to said plaintiff, which deeds were in all respects in due form of law, except the acknowledgment thereof by Wilcox, which was done before a deputy county clerk of Montana Territory.

"Ninth. That the words 'dump ground,' as appears in the deed from said Wilcox and Doughty, were, by the consent of one of the grantors thereof, inserted therein after the delivery and recording of the same.

"Tenth. That the respective parties, up to the year 1870, mutually divided the waters of said Indian creek, and for the latter part of the year 1870, defendants, by compromise with Wilcox and Doughty, used all the waters of said Cedar gulch ditch."

The plaintiff insists that, under the facts as found by the court, there is shown to exist at least such an equitable title to the property in question as to entitle him to the relief demanded.

The defendants insist that before relief can be had under the claim made by plaintiff, he must resort to an action at law to settle the legal title to the property in question. That by the law of this Territory, such property is declared to be real estate, requiring for a conveyance thereof the same form and solemnity as of real estate in fee simple; that no such conveyance is shown to have been made to the plaintiff's grantors; and that, therefore, their appropriation of the waters of Indian creek is superior to plaintiff's.

Upon a review of the authorities, we are satisfied that chancery is a well-defined remedy for relief in an action in the nature of a nuisance of which this clearly partakes, without resort to an action at law. In fact, equity seems to be the only appropriate remedy to afford relief in cases like the one under consideration.

As to the character of the property or right in dispute, it is true, under our law, it is such a species of realty as to require for its transfer the same form and solemnity as the conveyance of any other real estate: Cod. Sts. 396, § 3; 402, $34. Yet we can readily see how an estate or an interest in such kind of property can be acquired without such formality of conveyance.

Under the law of Congress, a grant of the kind of property in question is presumed by the act of appropriation. This may be lost by surrender or abandonment.

The conveyance or transfers of the property to plaintiff's grantors alone was not sufficient under our statute to convey the property to them; but the attempt so to do by imperfect conveyances, if it did not operate as an absolute or equitable conveyance, clearly operated as a surrender or an abandonment of their right, title and interest acquired by appropriation, which was the digging of the ditches in question. The title to these ditches is not controverted by the defendants, but only the waters of Indian creek carried through them. The water is but an incident to the ditches, and the right acquired to use it may be lost by abandonment, and when so lost, it becomes (publici juris) public property again, and subject to be recaptured, and when so recaptured, the original appropriators are estopped from re-asserting their claim to it; and if they are estopped, wherein can a stranger assert or claim any right to such property?

The defendants in no manner connect themselves with the plaintiff's title, unless it be their claim of prior appropriation, which is simply possession, the priority of which necessarily determines the question under consideration.

The pleadings and findings of the court establish the fact that plaintiff's grantors had obtained actual and rightful possession of the property in question, prior to the construction of the Tieleke ditch by defendants, and that they continuously