"At a District Court of the Twenty-second Judicial District of the State of California, in and for the County of Marin, held at the Court-house in the County of Marin, on the eighteenth of November, 1878; present, the Hon. Jackson Temple, Judge of the Twenty-second Judicial District: "Joseph Smith et al., Plaintiffs,

VS.

"James Tunstead, Defendant.

"The demurrer to the complaint herein having been withdrawn, and the answer of the defendant filed herein, it is ordered that this cause be placed on the Trial Calendar of this Court for this November term, 1878, of this Court, for hearing and trial."

A copy of this order was served on the attorneys for plaintiffs on the same day on which it was entered.

The cause was called for trial on the second day of December, 1878. No one appeared for plaintiffs. The trial was proceeded with, and judgment passed for the defendant for the return of the property sued for, and which had been taken from his possession, or for the sum of $850, the value thereof, in case a return could not be had. On the third day of December, 1878, the attorneys for plaintiffs were notified by the attorney for the defendant of the decision and judgment of the Court above stated, made and entered on the second of December.

The plaintiffs, on the fifth of December, 1878, gave notice of a motion to set aside this judgment, on the ground that it was taken under a misapprehension of counsel for the plaintiffs that the said cause would be set down for trial on a day certain. This notice of motion was given by the attorneys of record who commenced the action for the plaintiffs, and was for the day of December, 1878. The notice was not heard in December, and afterwards other attorneys for plaintiffs were substituted.

The attorneys last referred to gave notice of a further motion to set aside the judgment, to be heard on the seventeenth day of March, 1879, on the ground that it was taken against the plaintiffs through their surprise, mistake and excusable neglect. The notice further stated that "this motion is intended to form a part of the motion heretofore made," etc.

The motion was made and denied on the seventeenth day of March, 1879, and this appeal is prosecuted from that order and the judgment.

On the argument the negligence of the attorneys for the

plaintiffs was conceded, and it was urged that the judgment should have been vacated because it was taken against them through the negligence or mistake of their attorneys, for which they should not be held responsible.

An examination of the affidavits impresses us with the conviction that the plaintiffs were not negligent; but their attorneys were, and parties in this State have, in such cases as this, been held not entitled to relief on account of the negligence of their attorneys. (Haight vs. Green, 19 Cal. 118; Mulholland vs. Heyneman, Id. 605; Ekel vs. Swift, 47 Cal. 620.)

If we should adopt the rule as contended for by plaintiffs, we must overrule these cases. This we do not feel authorized to do.

We find no error in the transcript, and the judgment and order are affirmed.

We concur: Myrick, J., Sharpstein, J.

IN BANK.

[Filed December 13, 1880.]

No. 6492.

R. HILLMAN, RESPONDENT,

VS.

J. G. NEWINGTON ET AL., APPELLANTS.

WATER RIGHTS ACTION AGAINST DIVERTERS, ACTING INDEPENDENTLY AS JOINT WRONGDOERS. Where a person was entitled to a certain quantity of water in a flowing stream, and eight other persons acting independently of one another, diverted the stream in such a manner that, though no one alone deprived him of the amount to which he was entitled, yet altogether they did: Held, that he could maintain an action against them all as joint wrongdoers.

Appeal from the District Court of the Twenty-first Judicial District, Lassen County.

E. V. Spencer, for appellants.

J. S. Chupman, for respondents.

SHARPSTEIN, J., delivered the opinion of the Court:

The respondent Hillman brought an action against eight defendants, the appellants herein, and alleged that he was entitled, by virtue of a prior appropriation, to 1,600 inches of the water flowing in a stream known as Willow creek, and that the appellants diverted the waters of said creek from the

natural channel thereof, so as to prevent them from flowing into the plaintiff's ditches, and thereby deprived him of the water to which he was entitled. He further alleged that the defendants threatened, and intended, unless restrained by an order of the Court, to continue said diversion and deprivation, and prayed that they be enjoined from so doing. There are other allegations of damages, and a demand of judgment therefor. Most of the material allegations of the complaint are specifically denied by the defendants. They first "deny that they have any joint interest in the subject matter of this action, or that they have jointly done any act or thing mentioned in the complaint; or that they are jointly liable to the plaintiff in any matter or thing connected with or growing out of the subject matter of the action, either of the matters or things mentioned or set out in the complaint, or of the matters hereafter mentioned and set out in this answer.

"And the defendants aver that their rights and interests in all matters connected with the subject matter of this action are separate and independent of each other, and that for these reasons they are improperly joined as defendants in this action."

Afterwards they allege that each of the defendants is the owner and in the actual possession of a separate and distinct tract of land, and that each of them has, without any connection with any other, diverted a distinct and separate part of the water of said creek for his individual use. In other words, that they have acted severally and not jointly in the premises.

The Court found that the rights of the plaintiff to 400 inches of the waters of said creek, measured under a fourinch pressure, were prior and paramount to the rights of the defendants or any of them in said waters; and that the defendants had severally and not in concert diverted said waters to such an extent that said 400 inches "did not pass down to the heads of plaintiff's ditches." The judgment of the Court is that the defendants be perpetually enjoined from "diverting said waters or any part of them from their natural channel during the months of April, May and June of each year to such an extent as that 400 inches of water, measured under a four-inch pressure, shall not pass down the channel of Willow Creek below the head of the defendant Newington's ditch and to the head of the plaintiff's upper ditch;" and that the plaintiff recover of the defendants one dollar damages and the costs of suit, taxed at $787.91; and that as between the defendants the costs and damages should be apportioned. From that judgment the defendants appeal.

The point most strongly pressed upon our attention by appellants' counsel is that there is a misjoinder of parties defendant, because they did not act jointly or in concert in diverting the plaintiff's water. It does appear, however, that the plaintiff is entitled to a certain quantity of water, of which he is deprived by the defendants. None of them have a right to use any of the water of Willow Creek unless there is more than 400 inches flowing in it. If there be more than that amount flowing in it at any time, the plaintiff has no interest in the surplus. What the respective rights of the defendants may be in it in no way concerns him.

It is not at all improbable that no one of the defendants deprives the plaintiff of the amount to which he is entitled. If not, upon what ground could he maintain an action against any one of them? If he were entitled to all the water of the creek, then every person who diverted any of it would be hable to him in an action. But he is only entitled to a certain specific amount of it, and if it is only by the joint action of the defendants that he is deprived of that amount, it seems to us that the wrong is committed by them jointly, because no one of them alone is guilty of any wrong. Each of them diverts some of the water. And the aggregate reduces the volume below the amount to which the plaintiff is entitled, although the amount diverted by any one would not. It is quite evident, therefore, that without unity or concert of action no wrong could be committed, and we think that in such a case all who act must be held to act jointly.

If there be a surplus, the defendants can settle the priority of right to it among themselves. That can in no way affect the plaintiff's right to the amount to which he is entitled. It does not seem to us that the defendants' answer that each one of them is acting independently of every other one, shows that the wrong complained of is not the result of their joint action; and if it does not the answer in that respect is insufficient to constitute a defense. The case, so far as we are advised, is sui generis. No parallel case is cited by either side. The objection that the judgment does not apportion the payment of the damages and costs equally between the defendants can be obviated by a modification of the judgment in that respect. And it is ordered that it be so modified, and with that modification it is affirmed. We concur: Morrison, C. J., Myrick, J., Ross, J., Thornton, J.

I concur in the judgment McKinstry, J.

DEPARTMENT No. 2.

[Filed October 9, 1880.]

No. 6605.

JOHN H. PIEPER, RESPONDENT,

VS.

THE CINTENELLA LAND COMPANY OF LOS ANGELES ET AL., APPELLANTS.

MOTION TO CHANGE PLACE OF TRIAL-PAPERS ON APPEAL-BILL OF EXCEPTIONS UNNECESSARY. Under Section 951 of the Code of Civil Procedure, as amended in 1874, it is not necessary in order to have a motion to change the place of trial passed on by the Supreme Court, that the papers used on such motion should be embodied in a bill of exceptions; it is sufficient if they are inserted in the transcript, with a certificate of the Judge of the Court below that they were used on the

motion. POWER OF SUPREME COURT TO MAKE RULES-EXTENT OF POWER. In the absence of any statutory provision as to how it should be made to appear to the Supreme Court on an appeal what papers were used on a motion to change the place of trial: Held, that the Supreme Court might prescribe the mode in which such papers might be brought up; and that, as it had the power to make a rule in advance, it might ratify the mode adopted by the Court below in a particular case. ALL DEFENDANTS SHOULD JOIN IN MOTION TO CHANGE PLACE OF TRIAL. A motion by defendants to change the place of trial of a cause on account of their residence, and convenience of witnesses, should be joined in by all the defendants; and if one, who appears to be a proper party and who intends in good faith to defend, does not join, the motion should be denied.

Appeal from the District Court of the Twentieth Judicial District, Santa Clara County.

Brunson & Wells, J. A. Graves and Bicknell & White, for appellants.

F. E. Spencer, for respondent.

THORNTON, J., delivered the opinion of the Court:

This is an appeal from an order denying a motion made to change the place of trial. The motion was made on two grounds-first, the residence of the moving parties; and second, the convenience of witnesses.

An objection is taken by the respondent that the papers claimed to have been used on the motion in the Court below cannot be looked at on this appeal, because not embodied in a bill of exceptions.