Appellants say the court erred in not permitting them to prove that Kelly knew Brumagim made the contract of September 30, 1868, for the benefit of the holders of the Mariposa certificates, and that he, Kelly, reported to the witness, Mark Brumagim, "that he had bought the property at tax sale." But these were matters which preceded the agreement of January, 1872, which settled and determined the rights of the parties to it.

The court did not err in sustaining objections to the questions to the witness, Heydenfeldt, as to his understanding of the meaning of the letter of the twenty-third January, 1875, and of the contract of the twenty-second July, of the same year. The letter and contract were unambiguous. For the same reason there was no error in refusing to allow the witness, Burr, to testify with respect to the statements of Heydenfeldt as to the meaning of the letter.

The question asked the witness as to his knowledge of the contract of the twenty-ninth January, 1872, signed by him, could not have prejudiced defendants. The witness answered: "I have a very shady memory about it; I don't think I could tell you anything about it. There was something done." The question to the witness, Burr, as to his knowledge of the indebtedness of the New York to be paid by the California Company, was immaterial. He had already testified, without objection, "I know nothing about what were the debts and liabilities of the New York Company, which the California Company had agreed to assume and pay, only as was certified by the New York Company, and read by the president.' Judgment and order affirmed.

MORRISON, C. J., MYRICK, J., SHARPSTEIN, J., Ross, J., MCKEE, J., and THORNTON, J., concurred.

No. 9,452.

MOORE v. CLEAR LAKE WATER WORKS.

In Bank. Filed January 12, 1885.

CARRYING CAPACITY OF DITCH-ALLEGATION OF.--An allegation that a ditch carries a certain number of cubic feet of water, and that the flow is at a given rate per second, without stating the duration of time within which the named quantity of water passes, is not an allegation of the capacity of such ditch.

RIPARIAN PROPRIETOR INJUNCTION AGAINST DIVERSION OF WATER.-A riparian proprietor is not entitled to an injunction against one wrongfully diverting water from his stream, unless the flow to his land has been appreciably, or at least perceptibly, diminished.

APPEAL from a judgment of the superior court of Yolo county, entered in favor of the plaintiff. The opinion states the facts. Fox & Kellogg, for the appellant.

W. B. Treadwell, F. E. Buker and Wallace, Greathouse & Blanding, for the respondent.

MCKINSTRY, J. The court below found "All the allegations of the complaint herein are true, except that the capacity of the ditch of

plaintiff therein described is four hundred and thirty-two cubic feet of water per second, and no more."

The first count of the complaint fails to aver intelligibly what is the capacity of plaintiff's ditch. The allegation in the first count is: "The said ditch during all the times, etc., had the capacity to carry one hundred and eighty cubic feet of water, running and flowing at the velocity of four feet per second." It is very clear that a statement that a ditch has capacity to carry one hundred and eighty "cubic" feet of water conveys no distinct idea, and the words "running and flowing at the velocity of four feet per second," add no force of meaning to those which precede them. Seven hundred and twenty cubic feet of water might indeed pass into a ditch in a second of time, or so might one hundred and eighty cubic feet. But the allegation of the complaint is not an allegation of either of those two things. An acceleration of the current would increase the quantity of water passing any point on the ditch in any fixed period of time. But an allegation that a ditch carries a certain number of cubic feet of water, and that the flow is at a given rate per second, without stating the duration of time within which the named quantity of water passes, omits the datum which can alone give precision of the averment.

It is urged by respondent that the second count of the complaint (the allegations of which the court found to be true) shows plaintiff to be a riparian proprietor, and entitled as against the defendant, who is not a riparian owner, to all the water of the stream. The second count alleges that defendant has diverted and is diverting a large portion of the waters of the creek. It is impossible to determine what quantity of water may, in the opinion of the pleader, be a large portion. It is apparent that a great quantity of water may be taken from a large stream without materially, or even perceptibly, diminishing the flow of the stream below the point of diversion. There is no averment that by reason of the diversion by defendant the quantity of water in the creek when it reaches plaintiff's lands is reduced in such degree as even to be discoverable. For aught that appears from the complaint, Cache creek flows through such lands, bank full. Of course, if any quantity is diverted, the quantity so diverted does not reach the lands below. But, conceding (for the purposes of the argument), the rights of riparian owners to be as suggested by respondent's counsel, a plaintiff is not entitled to an injunction unless the flow to his land has been appreciably, or at least perceptibly, diminished by diversion above.

Judgment reversed and cause remanded for a new trial.

SHARPSTEIN, J., MYRICK, J., THORNTON, J., Ross, J., MCKEE, J., and MORRISON, C. J., concurred.

No. 9,122.

EUREKA LAKE AND YUBA CANAL COMPANY v. SUPERIOR COURT OF YUBA COUNTY.

In Bank. Filed January 12, 1885.

HYDRAULIC MINING--INJUNCTION AGAINST WITHOUT NOTICE TO CORPORATION. -A corporation whose general, ordinary and only business is that of mining by the hydraulic process and of selling water to others to be used for a like purpose, may be injoined upon an ex parte application, without notice to it, from depositing in or discharging "mining debris" into certain streams, or from selling water to others to be used for the purpose of washing by the hydraulic process any mineral lands into the channels of said streams, or their tributaries.

SERVICE OF SUMMONS ON FOREIGN CORPORATION-AGENT DESIGNATED TO RECEIVE SERVICE -Service of summons on a person designated by a foreign corporation as one upon whom process might be served, under the act of April 1, 1872, is a sufficient service on the corporation, so long as such designation remained unrevoked, although at the time of service, which took place after the adoption of the code of civil procedure, such person was not the agent, cashier, secretary or other officer of the corporation.

SERVICE OF PRELIMINARY INJUNCTION, HOW MADE.-A preliminary injunction against such corporation may be served by leaving with such agent a copy of the writ and showing the original and explaining its contents, and delivering to him a copy of the complaint and verification.

CONTEMPT ORDER TO SHOW CAUSE-SERVICE ON ATTORNEYS.-An order to show cause why a corporation should not be punished for contempt in violating an injunction may be served on the attorneys for the corporation, when the agents of the corporation conceal themselves for the purpose of avoiding service.

SUPERIOR JUDGE MAY HOLD COURT IN ANOTHER COUNTY.--The judge of the superior court of one county may hold court for the judge of another county at the latter's request.

APPLICATION for a writ of certiorari. The opinion states the

facts.

W. C. Belcher, J. K. Byrne, S. M. Wilson and W. T. Wallace, for the petitioner.

S. M. Bliss, Stabler & Byrne, E. A. Davis and I. S. Belcher, for the respondent.

MYRICK, J. Certiorari, to review the proceedings of the respondent in adjudging the petitioner guilty of contempt for disobedience of an injunction, and in imposing a fine.

1. The petitioner claims that all of the proceedings are void, under section 531, code of civil procedure, the injunction having been granted without any previous notice to the petitioner. This point was considered by this court, in Golden Gate C. H. Co. v. The Superior Court of Yuba county, 2 West Coast Rep., 736, and it was there held that the injunction did not suspend the general and ordinary business of the corporation, but only suspended its conduct of mining operations in a particular manner, alleged to injure the plaintiff in the action in which the injunction was issued. In the case before us, the petition states the business of the petitioner to be mining by the hydraulic process, and selling water to others to be used for a like purpose, and that such business constituted the general and ordinary, and only, business of the petitioner. The injunction commanded the petitioner, its officers, agents, superintendents, managers, servants and employees, to desist, and refrain from depositing in, or suffering to flow into the channel or bed of certain streams, or their tributaries, any tailings from its hydraulic

mines, or any material discharged from said mines commonly called "mining debris," and from selling to other, or suffering, or permitting others to use any portion of its waters, for the purpose of washing by the hydraulic process, the banks or bottoms of any other mine, or mining ground into beds, or channels of said streams or their tributaries. For the reasons stated in the opinion above referred to, we are of opinion, that the granting of the injunction in this case, was not in conflict with the section of the code cited.

2. On the fifteenth of November, 1872, the petitioner, in compliance with the requirement of the Act of April 1, 1872, filed in the office of the secretary of state, an instrument designating one Allenberg, as the person upon whom process might be served. On the twenty-ninth of March, 1880, the petitioner, having removed its principal place of business from Nevada county to San Francisco, filed in the office of the secretary of state, an instrument designating David Cahn, of the latter place, as the person on whom process might be served. In the action in which the injunction was issued, the summons was served by the sheriff of the city and county of San Francisco, on the ninth day of November, 1882, by delivering a copy of the same, together with a certified copy of the complaint, to the said David Calin. On the motion of petitioner to set aside the return of service of summons, affidavits were read in support of the motion, to the effect, that at the time of the service, one A. S. Bigelow, of the county of Nevada, was its managing agent, and said Cahn was not and had not been for more than a year prior thereto, the agent, cashier, secretary, or other officer of the petitioner. In regard to this point, it is sufficient to say, that the petitioner had, under the statute of April 1, 1872, designated Cahn as the person upon whom process might be served, and such designation had not been revoked at the time of service. This designation was made after the amendment of 1874, to section 411, code of civil procedure, and the petitioner could not be heard to say, in the suit for injunction, that Cahn was not the proper person as designated in subdivision 2 of said section 411. The Act of April 1, 1872, was not repealed by the codes; the codes were approved March 12, 1872, and, with relation to laws passed at that session, were to be construed as though each had been passed on the first day of the session: Pol. Code, sec. 4,478. That being the case, there is nothing inconsistent in the two acts. By section 411, code of civil procedure, the process is to be served on some one of certain officers; the act of April 1, 1872, requires the corporation to designate who is the person. The service was sufficient. To hold otherwise would be to permit a foreign corporation to set at defiance all process.

3. The writ of injunction was served November 9, 1882, by the sheriff of the city and county of San Francisco, by leaving with the said David Cahn a copy of the writ and showing the original and explaining its contents, and delivering to him a copy of the complaint and verification. The service was sufficient.

4. An alleged violation of the injunction occurred on the twentyninth of December, 1882. The defendant having, in its motion to set aside the service of summons, filed affidavits that A. S. Bigelow was its managing agent at its works, the court, January 20, 1883, made an order to show cause, for the alleged violation, and directed that it be served on A. S. Bigelow, managing agent, or on David Cahn, the person designated as aforesaid. On the third day of March another order to show cause was made, and was served on Cahn. Subsequently still, another order was made, and directed to be served on either Bigelow or Cahn. This could not be served on Cahn, as the person attempting to make service could not find him, and was informed that he was then in New York. The sheriff of Nevada county and another person went at different times to the works of the defendant and to its office, and to the residence of Bigelow, for the purpose of serving him, and endeavored to find him, but could not; and the court, after hearing the affidavits tending to show that Bigelow was concealing himself for the purpose of avoiding service, made another order to show cause, and directed that it be served on one of the attorneys for the defendant. Service was accordingly made.

It is objected that this service did not give the court jurisdiction to proceed against the defendant as for a contempt. We refer to the opinion above mentioned as being peculiarly applicable to the facts appearing in this case. The evident intention of the defendant and its management was to avoid the service of process. We are not disposed, nor are we at liberty, to sanction the carrying of such intentions into effect.

We make use of the present occasion to say, that questions of state policy or of the rights of communities or individuals, are not to be determined, or determination avoided, by the use of such means as appear to have been resorted to in this case.

5. The judge of the superior court of Colusa county at the request of the judge of the superior court of Yuba county held the court a portion of time during which the proceedings were had. We see no error in this. The constitution, sec. 8, art. VI, expressly authorizes a judge of one county to sit at the request of a judge of another county.

We see no excess of jurisdiction.

The orders are affirmed.

MCKEE, J., Ross, J., McKINSTRY, J., and SHARPSTEIN, J., concurred.

No. 9,123.

EUREKA LAKE AND YUBA CANAL COMPANY v. SUPERIOR COURT OF YUBA COUNTY.

In Bank. Filed January 12, 1885.

ORDERS AFFIRMED ON THE AUTHORITY of Eureka Lake and Yuba Canal Company v. Superior Court, ante.