PATERSON, J. The executors of the last will and testament of James Dunne, deceased, are not necessary parties in this action. It is true, the resolution of intention to improve the street in front of the property described in the complaint was passed by the board of supervisors, and the contract for the work let to plaintiff prior to the death of said James Dunne, but the assessment was not made until after his death, and it is admitted in the answer that defendant is the owner of the property; the same having been devised to him by his father, said James Dunne. A. J. and E. T. Donnelly were named in the will as executors, and duly qualified as such, and ever since have been and are now in the possession of the lands affected by the street-assessment lien. It is claimed by appellant that the administration of the estate of James Dunne, deceased, being still open, and no decree of distribution having been made, the executors should be made parties defendant, and the amount due by virtue of the assessment lien collected of them in due course of administration. There is nothing to show, however, that the debts have not all been paid, the family allowances provided for, or that there is not an abundant amount of personal property out of which all debts and expenses of administration can be paid, if there be any such debts or expenses remaining. It was said by Mr. Justice TEMPLE, in Brenham v. Story, 39 Cal. 188, that "upon the death of the ancestor the heir becomes vested at once with the full property, subject to the liens we have mentioned;" i. e., debts, expenses of administration, and family allowance.

In support of his proposition that the executors are necessary parties defendant, appellant cites Hancock v. Bowman, 49 Cal. 413, and People v. Doe, 48 Cal. 561. The decisions in those cases were based upon the provisions of section 13 of the act of April 4, 1870, which required the action to be brought "against the owners and all persons having an interest therein." St. 1869-70, p. 898.. But by an act approved April 1, 1872, and apparently to avoid the necessity of making all parties having an interest in the property defendants in the action, it was provided (section 13) that the action might be brought against the owner of the land; and section 17 of the act provides that "the person owning the fee, or the person in the possession of lands, lots, or portions of lots or buildings under the claim of ownership, or exercising acts of ownership over the same for himself, or as the administrator or guardian of the owner or the person in whom on the day the action commenced appears the legal title to the lands by deeds recorded in the recorder's office in the city and county of San Francisco, shall be regarded, treated, and deemed to be the owner (for the purpose of this law) according to the meaning and intent of that word as used in this act."

It may be that, under these provisions, persons other than the heirs and devisees are proper parties to the action, and that their rights cannot be foreclosed unless they are made defendants; but as to that we express no opinion. It is sufficient to say that the defendant is the owner in fee; that he is the only necessary party; and that plaintiff is entitled, under this act, to a decree of foreclosure, whatever may be the rights of other parties interested who are not joined as defendants. Parker v. Bernal, 66 Cal. 113, 4 Pac. Rep. 1090. Judgment affirmed.

We concur: TEMPLE, J.; MCKINSTRY, J.

(3 Wash. T. 100)

KRATZ and another v. DAWSON.

(Supreme Court of Washington Territory. January 27, 1887.)

1. APPEAL-RECORD-OBJECTION NOT TAKEN BELOW.

When the transcript shows that, subsequently to the denial of a motion to strike out plaintiff's reply, a new complaint was filed, and a new chain of pleading made

up to the reply, to which no objection was saved, and upon which the judgment appealed from was founded, the appellant cannot insist that the refusal to strike out the reply was error.

2. SAME WHAT CONSIDERED-ATTACHMENT-DISSOLUTION-COSTS.

When the record on appeal shows that defendants in an attachment suit retook possession of the attached property on giving a forthcoming bond, a refusal of the lower court to quash and dissolve the attachment on their motion cannot be considered by the supreme court of Washington Territory, unless as affecting the taxation of costs, and not then when no error in that matter is assigned.

C. W. Hartman, D. P. Ballard, and C. Hayer, for plaintiffs in error. Joseph W. Robinson and N. S. Porter, for defendant in error.

GREENE, C. J. Upon the record before us it is urged that we should reverse the ruling of the district court in refusing to quash and dissolve the attachment on the defendant's motion. It appears that they retook possession of the attached property on giving a forthcoming bond. We do not see how the correctness of the action of the district court in the premises could be questioned here, unless as affecting the taxation of costs. No error in that matter is assigned.

It is also claimed by plaintiffs in error that the district court erred in denying defendants' motion for an order striking out the plaintiff's reply. It does not appear to us that such denial was error; but, assuming that it was, defendants cannot insist upon it in this court, for the transcript shows that subsequently a new complaint was filed, and a new chain of pleading made up to the reply, in which no objection was saved, and upon which the judgment appealed from is founded.

Let the judgment of the court below be affirmed, with costs.

TURNER and LANGFORD, JJ., concur.

(3 Wash. T. 99)

COLE v. TERRITORY.

(Supreme Court of Washington Territory. January 25, 1887.) CRIMINAL PRACTICE-APPEAL-HOW TAKEN.

An appeal in a criminal case cannot be taken to the supreme court of Washington Territory on notice given in open court, at the time of the rendition of the judgment, when no assignment of errors is filed as served thereunder; nor by a second notice, five months after the first notice, prepared and served under the Code as in civil cases; as, if the act of 1883 applies to criminal cases, the failure to file assignments of error and prosecute under the first notice would warrant a dismissal for want of prosecution, and, if the act of 1883 does not apply, a writ of error issued as provided by Crim. Code, ?? 1140-1142, is the only way to take the case to the supreme court.

Andrews & Jones, for appellant.

HOYT, J. The appellee herein not having appeared in this court, we had to examine the transcript to see that we had jurisdiction, before proceeding to the consideration of alleged errors; and from such examination we find that a notice of appeal was given in open court at the time of the rendition of the judgment, but no assignment of errors was filed or served thereunder. We further find that, about five months after the giving of such notice, a notice under the Code was prepared and served as in civil cases, and it was by virtue of these notices that the cause is here, if at all. We do not think it is properly here for hearing on the first notice; as, even if the act of 1883 applies to criminal cases, which we very much doubt, yet there has been such a failure to file an assignment of errors under said notice, and to further prosecute the appeal thereunder, that it should be dismissed for want of prosecution. Nor do we think that we can hear it under the second notice, as it is clear that before the act of 1883 this court could only get jurisdiction of a

criminal cause by virtue of a writ of error issued out of this court by the clerk thereof, as provided in the provisions as to appeals in the Criminal Code. See sections 1140-1142. It follows that the appeal must be dismissed; and it is so ordered.

GREENE, C. J., and LANGFORD, J., concur.

(3 Wash. T. 13)

LEARY and another v. TERRITORY.

(Supreme Court of Washington Territory. January 5, 1887.) APPEAL-REQUISITES OF-TIME OF TAKING.

A judgment was rendered on May 26, 1885. On December 10, 1885, a motion to set aside the judgment was denied. On January 9, 1886, notice of appeal from these two acts was filed. Held, that the appeal should be dismissed, as more than six months had elapsed since the first act, and the latter was not a final judgment from which an appeal would lie.

McNaught, Ferey, McNaught & Mitchell, for plaintiffs in error. F. Campbell, for defendant in error.

GREENE, C. J. A judgment, or what for the mere purpose of this opinion will be called a judgment, was rendered in the district court between these parties on the twenty-sixth of May, 1885. On the tenth day of the next following December, a motion to set aside the judgment was denied. From these two acts of the district court the plaintiffs in error served and filed notice of appeal in this cause on the ninth day of January, 1886. More than six months had then elapsed since the former act of the district court; and the latter act, under the circumstances appearing of record, was not a final judgment. For these reasons the motion to dismiss the appeal must be granted.

TURNER and LANGFORD, JJ., concur.

(16 Or. 165)

WEST v. TAYLOR and another.

(Supreme Court of Oregon. April 4, 1887.)

WATERS AND WATER-COURSES-OBSTRUCTION OF WATER-COURSE.

A. owned lands adjoining a lake, about two miles long, and half a mile wide, fed by perennial springs and a mountain creek. Originally the main outlet from the lake was a second creek, into which the waters flowed at ordinary stages. From the western part of the lake flowed a third creek, which emptied into a creek that flowed into the Pacific ocean. The main outlet becoming choked up with sand, the waters overflowed the lands of B. and C. on the north of the lake, forming marshes and swales, and escaped into a creek flowing into a bay; and for several years this was the main outlet from the lake. B. and C. erected a dike to protect their land, which raised the water in the lake, and threw it back upon A.'s land, overflowing about 1,000 acres. Previous to erecting the dike, B. and C. had cut two ditches that carried the water off their land. Held, that the waters on the lands of B. and C. could not be considered merely as surface water, but constituted a water-course, and that B. and C. had no right to erect the dike.1

Appeal from Clatsop county.

J. Q. A. Bowlby, R. Stott, and J. B. Waldo, for appellant. Fulton Bros., for respondent.

STRAHAN, J. The object of this suit is to restrain the defendants from maintaining or repairing a certain dike or dam erected by them on their own lands in Clatsop county, Oregon, whereby the waters accumulating and flowing out of Cullaby lake are caused to flow back upon the plaintiff's lands, by

'See Montgomery v. Locke, (Cal.) 11 Pac Rep. 874, and note.

means of which their use for agriculture or pasturage is entirely destroyed. The facts, as they appear from the evidence, are about as follows: The plaintiff owns a large body of land adjacent to Cullaby lake, in Clatsop county, Oregon. This lake is about two miles long, and, upon an average, about onehalf mile wide, and is fed by perennial springs, and a mountain stream five or six miles long, which flows into the lake at its southern extremity, and is called "Clapsop Creek." For two miles south of the lake it is a deep, sluggish creek, and is of the depth of from nine to ten feet. Prior to 1877 the main outlet to the lake was Neacoxie creek, into which the waters of said lake flowed at ordinary stages. From the western part of the lake, Neacoxie creek flowed in a north-west course for about four miles; it then curved sharply to the westward, and from thence, in a southerly direction, along the coast, many miles south of the source of the lake, it empties into Okanna creek, which flows into the Pacific ocean. About the year 1877, the sand drifted into Neacoxie creek in such quantities that its channel became choked up, and it entirely ceased to be an outlet for the waters of said lake. This result was produced solely by natural causes. During high water, at all times Neacoxie creek was insufficient as an outlet for the constantly accumulating waters of said lake; but, after it became filled and choked with sand, the waters of said lake have flowed out at the northern portion thereof, a part of which spread out over the lands of the defendant and others lying north of said lake, while the greater portion thereof finally gained an outlet into Skipanon creek, which empties into Young's bay. There is no well-defined water-way from Cullaby lake to Skipanon creek extending over the entire distance; but over the greater portion thereof there extend "swales, marshes, depressions, or hollows," into which the water flows during the greater part of the year, with a continuous current northward to the Skipanon. The inclination of the surface from Cullaby lake to Skipanon is not great, but is enough to carry the water, if left unobstructed, from one point to the other. For the purpose of restraining the waters from Cullaby lake from spreading over the defendant's land the dike in question was constructed. It is two feet eight and one-half inches high, and its erection has raised the waters above and south of it, high enough to overflow from three to four hundred acres of the plaintiff's land, and about one thousand acres in all, which were not previously covered by water. Before the erection of said dike, the defendants and others, for the purpose of reclaiming their lands, had dug two ditches from Skipanon creek, extending up to or near the north end of the lake, so that a large portion of the overflow of the lake was carried off by means of these ditches.

A well-informed witness describes the situation thus: "Interrogatory 4, p. 5. How many natural outlets are there from that lake? Answer. I should say, for quite a number of years back the only natural outlet or inlet at all that I know of has been through the marsh. By the marsh I mean what is marked, Exhibit A, as marsh between Cullaby lake and Skipanon creek. The water escapes over and through the marsh. The ground appears to be porous, and in some places appears to be floating, and allows the water to flow partially under the marsh. Joining the mainland, the water seems to be deeper than in any other part of the marsh; that is, on the west side of the marsh. In former times there seems to have been another partial outlet. Since about the year 1877 this has been the only outlet that I know of. I don't know what was the outlet before '77. Don't think I ever was in the marsh prior to '77. Have seen the marsh several times lately. There is a dike or dam on the south line of the James Taylor claim, or close to the line. Int. 5, p. 6. State what effect, if any, was had upon the land. A. As long as the dam held, it forced the water back upon the lake and adjacent marshes. It overflowed the land of plaintiff partially. It is a damage to plaintiff's land, but how much I cannot say. The overflow of these lands interfered with the use of them." "A. to Int. 2, p. 19. At the present time there is what is called

the little ditch, between which and the slough which I speak of is high or marsh land of perhaps a rod in width or more. What I mean by the slough is clearer water than the rest of the marsh; the rest of the marsh having brush and grass growing upon it. It is, I should judge, about a rod in width. It is too deep to wade; soft bottom. It has a slight current to the north." "Cross-Question, p. 20. Is not it in many places entirely grown up with brush and crab-apples? A. Not so but I could get through with a boat." “Int. 22, p. 22. What did you ever go along the west side of the marsh, on defendant's land, in a boat, through this slough you speak of, for? A. I had shot a duck in it, and I got Carnahan's boat, and got it. I was through there two years ago." "Int. 13. How far through defendant's land did you go, in what you call a slough, in a boat? A. About half way through."

Another witness, R. W. Morrison, among other things, testified as follows: "Answer to Interogatory 1, p. 31. The marsh running across the east portion of my claim is as follows: Through my lands there are two branches of marsh. Between these branches there is a ridge of land. The marshes are branches of the portion of the marsh that is south, and joins Cullaby lake. There is a good deal of water going down these marshes at present, but most of it is going through ditches that have been cut through the marshes. By down' I mean north, coming from Cullaby lake, and flowing in a northerly direction. Int. 2. How long ago were these ditches dug? A. The one in the west arm must have been dug some 6 or 8 years ago. The one in the east dug some years later. Int. 3, p. 32. What was the condition of these arms before the ditches were dug? A. In the winter time they were flooded. In the summer time, years ago, they were dry; that is, there was no running water, or standing water except in low places. On my place I did not think there was any water that stood all summer except on the east marsh. There was a small channel that sometimes was above ground, and sometimes you would not see it for running under the trees. It would run under ground for a rod or two occasionally, and then appear on the surface again. This little channel stands in near the south line of my claim. Int. 4, p. 33. In what direction did the water in any of those marshes run prior to the digging of those ditches? A. The same course as in the ditches. The east marsh empties into Skipanon, and the west marsh into the Skipanon.” “Int. 7, p. 34. For how many years has the water run down the arms of that marsh during the winter season? A. As many years as I have lived there."

Mr. Philip Condit also, another witness, thus describes the condition of the water between Cullaby lake and Skipanon creek: "Interrogatory 2. Are you acquainted with Cullaby lake? Answer. Yes, sir; have been acquainted with it pretty well for fifteen years. Am acquainted with the lands and waters between it and the Skipanon. Along through the marsh, in 1874, the water was running through then, some. This was in the winter season. Late in November there seemed to be considerable water running through. The water was running across Mr. Morrison's, the Hobson place, and the Taylor place. All the water was running north towards the Skipanon. There seemed to be a small channel most of the way; but, after you get up to the Carnahan marsh, there did not seem to be any well-defined channel; the water spread over the marsh. This cranberry marsh is on the Hobson place and on the Taylor place. Sometimes I would go clear through to Cullaby lake. Int. 3. Which was the water coming from? A. From Cullaby lake. Int. 5. Where did the water come from? A. It came from Cullaby lake."

The general inclination of the earth's surface from the north end of Cullaby lake to the Skipanon is slightly downward, so that the water flowing out of said lake at the north end would naturally flow into Skipanon creek, so that for more than 25 years in cases of freshets the water escaping from this part of the lake has found an outlet through Skipanon creek. It also appears from the evidence given by A. C. Wirt that as early as 1852 the waters of