if it cannot be so supplied the loss will be great and irreparable.

"It is also found that all the water of the river is necessary for the city and its inhabitants, and for the irrigation of the lands in the city and bordering thereon, and will probably be insufficient for use in the city in a short time, and the same is not an unreasonably large supply for the city in the conditions now existing as aforesaid.'

"That although there has usually been some water in the dry season flowing past the city to plaintiff's land, the city has always claimed the right to take it, and has taken it when desirable.

"That in 1889, 1890, and 1891 the city caused certain levees to be made, which raised to the surface water which theretofore had percolated through and under the sands composing the river-bed, and since that time the flow in the stream has increased. That in 1893 the city made preparations to divert this increased flow, intending to sell the same to parties outside the city limits, until required for the use of the city or the inhabitants thereof. That the amount required for such use varies daily, and cannot be exactly estimated.

"It is also found that plaintiff is a riparian owner, and has constructed a dam and a ditch for diverting water, as averred in the complaint, but has acquired no right to any water by a compliance with the provisions of the Civil Code in regard to appropriation by the notice and record required, but has actually diverted some of the surplus water which the city permits to flow past when not required or desired by it. The greatest quantity which it has ever appropriated to any useful purpose is five hundred inches.

"Plaintiff's point of diversion is, apparently, at or near the upper line of its riparian lands. No portion of the water which it proposes to divert from the stream is to be used on its own land. There is no evidence or finding that its lands are susceptible of cultivation, or can be made productive, or that plaintiff is or can be

injured as to its riparian lands, though deprived of all the water flowing in the stream. Since, therefore, plaintiff's riparian lands would not be injured by the diversion of the water at a point in the river above its lands, and especially since the injunction, if issued, would not have the effect to cause the water to flow over or along its riparian land as it was accustomed to flow, plaintiff is not entitled to an injunction to protect its riparian rights. (See Modoc Land and Livestock Co. v. Booth, 102 Cal. 151.)

"The actual diversion by plaintiff of five hundred inches of water was made while the city was actually diverting the stream as it had been doing for many years, claiming the right to take it all, and occasionally actually doing so. Again, it must be understood that the conditions discussed mainly apply to the dry seasonfrom June until the fall rains.

At other times there is an abundance of water for all parties and for all purposes. Neither the evidence nor findings show when the plaintiff was able to take and sell five hundred inches of water. Was it during the dry season or when there was an abundance? Was it only when the defendants permitted the water to flow temporarily, while, for some reason, the water was not required? The needs of the city fluctuate daily. So it seems did the quantity flowing in the stream below the city. For how long a time plaintiff was able to sell five hundred inches of water is not shown. It does appear that sometimes larger quantities passed into its ditches. But that, of itself, does not constitute an appropriation. It was not appropriated to a useful purpose.

"This uncertain and, perhaps, permissive use of water is not sufficient to prove a right as against the defendants. But the plaintiff not only seeks an injunction, but asks to have its title quieted as against defendants, and its claim to the water, both as riparian owner and as an appropriator, determined. Counsel concede the claim of the city to the amount required and now actually used by the city, either for municipal

purposes or for the inhabitants. This concession seems to be founded upon the idea that the city has acquired such right as it has by appropriation. Counsel, however, contend that the city has no power to appropriate water to sell to outside consumers for a profit, and that it has acquired no rights by these acts of its officers, which are wholly ultra vires. Unauthorized acts of its officers are not the acts of the municipality.

"As applied to this case I am inclined to think this position must be sustained. It is not the ordinary case in which property has been acquired, by a corporation, through a transaction which was ultra vires as to the corporation. In such case it may be that the title of the corporation could only be called in question by the state. Here the title, if any, is gained through a continuous use which is forbidden, and the corporation cannot hold or use the property without the continued violation of its charter. It involves the continuous exercise of powers with which the corporation is not vested. It is not authorized to carry on the business of selling water to outside parties, and its officers are therefore not empowered to appropriate water for that purpose.

"But the city claims to have title to all the water derived from the Mexican pueblo, of which it is the successor. It becomes necessary, therefore, to examine the nature of the right which the pueblo had to the water of the river under the Spanish and Mexican laws.

"It is not easy for one accustomed to common law terms and ideas, and particularly to the system adopted by the United States for the settlement of vacant territories, to comprehend the Spanish and Mexican systems, or to estimate properly the nature of the right which the Mexican pueblos had to their land and waters. The laws, ordinances, and regulations of Spain and Mexico frequently seem to us at once oracular and vague. The trouble is, largely, that they were addressed to a people of very different habits of life and thought, and who were familiar with the system, of which they

constituted a part. This system is strange to us; and we are thoroughly indoctrinated with ideas arising from a very different system. The governmental modes differed so widely as to create in the people different necessities and habits of life. Some it may be interesting and profitable to notice.

"1. Our plan has been to encourage settlement of the country by selling land in small tracts at a minimum price. When so settled, villages, cities, and towns have grown up as required to supply the wants of the settlers. They have been called into existence by the settlements, but, in the beginning, have not contributed much to cause the country to be settled.

"The Spanish system was the opposite. They founded or encouraged the formation of villages which, by affording protection as well as educational and religious privileges, would encourage settlement of the neighboring country.

“2.

They could sus

These pueblos differed from our municipalities in many respects. They had no charters, and seem always to have been subject to the control and supervision of superior officers, and this control seems to have been complete and constant. pend, restrict, or enlarge the powers of the officers of the pueblo; and yet the pueblos, to an extent and in a mode which is strange to us, constituted convenient instrumentalities for the government of the neighboring country. Their jurisdiction, subject always to the supervision of higher officers, often extended over large territories. (Hart v. Burnett, 15 Cal. 531.)

"No grants of land were ever made to them, but as soon as organized they became entitled to have certain lands set apart to them for the use of the pueblo and its inhabitants. (Stevenson v. Bennett, 35 Cal. 432; Brownsville v. Cavazos, 100 U. S. 138.)

Our courts have determined that the successors of these pueblos held the pueblo lands in trust for the inhabitants, and that the legislature can control the execution of this trust; and the United States has, in accordance

with the decisions, confirmed the lands to the successors of the pueblos. Whether, under the Mexican system, any title was vested in the pueblos, or the title remained in the nation with power in the ayuntamientos to administer the properties, is now immaterial. In either event the mode adopted was a proper mode to preserve the equity which it is agreed the pueblos had in the lands set aside and devoted to the use of the pueblo.

"3. Perhaps the most important respect in which the pueblos and the habits of the inhabitants differed from our municipalities and the habits of our people is found in the extent to which individual wants were supplied from public or common lands. In this respect the difference is almost startling. Our practice is to reduce every thing to private ownership from which a profit can be made; and, of course, the more essential it is to the members of the community, the more profit can be made from it. The rule of the pueblo was almost the reverse of this. So far as communal ownership would answer the purposes of the community it was preferred. As water was one of the things thus held we may understand better the nature of the right which the pueblos had to it by considering other properties so held.

Many Spanish and Mexican documents were put in evidence on the trial of the case, and their substance is set out in the statement. The counsel for the city has also compiled a great deal of Spanish and Mexican law on the subject. I draw from these sources:

"1. There were the montes, or woodlands, from which the inhabitants could get firewood. A quotation is made from Alveres, volume 2, page 12: In the law of Castile we meet many regulations concerning the woodlands and bounds (terminos) of cities and villas, in addition to the very great utility which results from their preservation, since from them was to be drawn the timber necessary as well for the construction of ships as for firewood. With this object it is commanded that the trees shall not be cut from the foot, so that they may grown up again, and that the open fields shall serve for common