The verdict of the jury implies a finding that the defendant did not consent to plaintiff's use of the water, and this implied finding is supported by the defendant's evidence. It follows that under this instruction the verdict of the jury was proper. This instruction as to the right of the defendant to use necessary force if the water was being used without his consent was not attacked in the plaintiff's brief, nor was there any assignment of error in the bill of exceptions in which it was claimed that this instruction was erroneous, nor does the record disclose whether or not this instruction was given by the court at the request of either the plaintiff or the defendant. The bill of exceptions with reference to the instruction is as follows: "The cause was argued to the jury by counsel, and the court thereupon instructed the jury, and to each and all of the instructions so given by the court the plaintiff now enters his exception to the same and to each of the same.

[1] The defendant now claims that we cannot now consider the sufficiency of this instruction.

Before the amendment of section 659, Code of Civil Procedure, it was essential that an assignment of error be made in the statement of the case on a motion for a new trial. Section 659, subdivision 3, Code of Civil Procedure, as enacted in 1873-74 (Stats. 1873-74, p. 315) upon that subject is as follows: When the notice designates, as the ground of the motion, errors in law occurring at the trial, and excepted to by the moving party, the statement shall specify the particular errors upon which the party will rely. If no such specification be made, the statement shall be disregarded on the hearing of the motion. . . .

Under this section the authorities cited by the respondent, Bohnert v. Bohnert, 95 Cal. 444 [30 Pac. 590], Estate of Black, 132 Cal. 392 [64 Pac. 695], and many other cases, (People v. Central Pacific R. R. Co., 43 Cal. 398; Bagnall v. Roach, 76 Cal. 106 [18 Pac. 137]; Smith v. Smith, 119 Cal. 183, 186 [48 Pac. 730, 51 Pac. 183]; Laver v. Hotaling, 115 Cal. 613 [47 Pac. 593]; Thompson v. Patterson, 54 Cal. 542; Budd v. Drais, 50 Cal. 120; Heinlen v. Heilbron, 71 Cal. 557, 563 [12 Pac. 673]; Hershey v. Kness, 75 Cal. 115 [16 Pac. 548]; Leonard v. Shaw, 114 Cal. 69 [45 Pac. 1012]; Lambert v. Marcuse, 137 Cal. 44 [69 Pac. 620]), hold that in the absence of such assignment of error the court will not

consider such errors upon appeal as the trial court was precluded from considering them in the granting or denying of the motion for a new trial, but this provision has been repealed and the authorities cited no longer apply (Code Civ. Proc., sec. 659; Stats. 1915, p. 201). The appeal in this case is based upon a bill of exceptions, prepared under section 650 of the Code of Civil Procedure, whch provides that the bill of exceptions "must contain all the exceptions and proceedings taken upon which the party relies . . .". If the exception to the verdict or decision is upon the ground of the insufficiency of the evidence to justify it, the objection must specify the particulars in which such evidence is alleged to be insufficient (Code Civ. Proc., sec. 648). A formal assignment of errors at law occurring at the trial is not necessary under the provisions of sections 648, 650, Code of Civil Procedure, and errors of law appearing in such bill can be reviewed without any formal assignment of error. Such was required in a statement of the case under section 659, subdivision 3, Statutes 1873-74, page 315 (Reay v. Butler, 69 Cal. 572 [11 Pac. 463]; Shadburne v. Daly, 76 Cal. 355 [18 Pac. 403]; Hagman v. Williams, 88 Cal. 146 [25 Pac. 1111]; Barfield v. South Side Irrigation Co., 111 Cal. 118 [43 Pac. 406]; Snell v. Payne, 115 Cal. 218 [46 Pac. 1069]; Smith v. Smith, 119 Cal. 183 [51 Pac. 183]; Harper v. Gordon, 128 Cal. 489 [61 Pac. 84]. It follows that the contention that the error, if any, in the giving of this instruction cannot be considered because of the failure to assign the giving thereof as error in the bill of exceptions is not well taken.

[2] Defendant's claim that this court must indulge in the presumption that the instruction under discussion was given at the request of the plaintiff cannot be maintained. It is true that where the record is ambiguous upon this subject the presumption in favor of the judgment would require us to assume that the instruction was given at the request of the appellant. (Gray v. Eschen, 125 Cal. 1, 5 [57 Pac. 664]; Sutter Butte C. Co. v. American R. & A. Co., 182 Cal. 549, 555 [189 Pac. 277].) The latter case was one in which the record was prepared under section 953a, Code of Civil Procedure. In Gray v. Eschen, supra, the record was ambiguous for the reason that it appeared from the bill of exceptions that the instructions were based

upon those given by counsel and in some instances modified by the court, and the exceptions thereto were thus stated: "It is understood that every portion of the charge is deemed excepted to by each counsel, and every omission or modification is also deemed excepted to by each counsel." In this condition of the record the court was unable to say whether or not the particular parts of the instructions objected to were proposed by the party objecting.

In the bill of exceptions now before us it appears that the instructions were all given by the court, and under the law since 1909 each party has an exception thereto (Code Civ. Proc., sec. 647; Stats. 1909, p. 586). Without further showing in the bill of exceptions the plaintiff is entitled to attack the correctness of the instruction. If the instruction was given at the request of the plaintiff, that fact should have been made manifest by the incorporation of plaintiff's instruction in the bill of exceptions or by a statement that the instruction was given at plaintiff's request.

[3] It is true that by failure to present the alleged error in the instruction in plaintiff's brief the point may be deemed to have been waived (City Savings Bank v. Enos, 135 Cal. 167 [67 Pac. 52]); and the court need not inquire into the correctness of the instruction. (Rogers v. Schlotterback, 167 Cal. 35 [138 Pac. 728]; De Sanchez v. McMahon, 35 Cal. 218; City of Alameda v. Cohen, 133 Cal. 5 [65 Pac. 127]; Bird v. Potter, 146 Cal. 286 [79 Pac. 970]; People v. Duncan, 22 Cal. App. 430 [134 Pac. 797]; People v. Stein, 23 Cal. App. 108 [137 Pac. 271]; Arnold v. Producers Fruit Co., 141 Cal. 738 [75 Pac. 326]; Hihn v. Courtis, 31 Cal. 399; Webber v. Clarke, 74 Cal. 11, 13 [15 Pac. 431]; Moore v. San Vicente Lumber Co., 175 Cal. 212 [165 Pac. 687]; A. B. Field & Co. v. Haven, 36 Cal. App. 669 [173 Pac. 108]; Vance v. Gilbert, 178 Cal. 574 [174 Pac. 42].)

The district court of appeal, however, predicated its judgment of reversal upon the relative rights of the parties in the real estate, pipe-line and water and thus in effect held the instruction in question erroneous. In the defendant's petition for transfer to this court, and in the oral argument of the parties, subsequently printed, the question as to the correctness of this instruction has been presented. In view of the fact that the question has been raised by the district court of appeal and is now presented by the parties and is

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properly based upon the record on appeal, we do not feel justified in dismissing the point from consideration for the mere reason that the plaintiff failed to make the point in his briefs prior to the decision of the district court of appeal.

Counsel for plaintiff have presented the point by adopting the reasoning of the district court of appeal as their own. That court assumed for the purpose of the decision that the defendant had a right to the free flow of the water through the pipe-line crossing plaintiff's land, and held that the interference of the plaintiff therewith was a wrongful invasion of the defendant's right and therefore a private nuisance, and that the defendant had a right to enter the plaintiff's premises for the purpose of abating this nuisance, provided it could be done without a breach of the peace.

Defendant does not seriously attack the reasoning or conclusion of the district court of appeal upon the fact assumed by them, but insists that he was in effect engaged in recapturing personal property (water) which was being stolen by the plaintiff and for that reason he was entitled to use all necessary force to recapture the property, citing in support of this contention the following authorities upon the right to recapture possession of stolen property and upon the right to maintain possession against a thief: 3 Blackstone Com. 120; State v. Cessna, Ann. Cas. 1917D, 289, note; 2 R. C. L., p. 555, sec. 35; Barnes v. Martin, 15 Wis. 263 [82 Am. Dec. 670]; Biggs v. Seufferlein, 164 Iowa, 241 [L. R. A. 1915F, 673, 145 N. W. 507]; Riffel v. Letts, 31 Cal. App. 426 [160 Pac. 845]; Hodgeden v. Hubbard, 18 Vt. 504 [46 Am. Dec. 167]; Gyre v. Culver, 47 Barb. (N. Y.) 592; Johnson v. Perry, 56 Vt. 703 [48 Am. Rep. 826]; Hopkins v. Dickson, 59 N. H. 235; Kirby v. Foster, 17 R. I. 437 [14 L. R. A. 317, 22 Atl. 1111]; Sterling v. Warden, 51 N. H. 217 [12 Am. Rep. 80]; 1 Waterman on Trespass, secs. 159, 167; Walker v. Chanslor, 153 Cal. 118 [126 Am. St. Rep. 61, 17 L. R. A. (N. S.) 455, 94 Pac. 606].

If we assume, as contended by defendant, that the act of the plaintiff in opening the pipe-line upon plaintiff's property and allowing the water to flow out upon his property was the unlawful taking of the personal property of the defendant, which defendant had a right to recapture by use of all force reasonably necessary for that purpose, still the

battery in question cannot be justified. Defendant did not undertake to regain possession of the water which had overflowed on the lands of the plaintiff that would have been an impossibility. [4] Moreover, it is now settled that water in use for irrigation is not personal property. (Stanislaus Water Co. v. Bachman, 152 Cal. 716, 725 [15 L. R. A. (N. S.) 359, 93 Pac. 858]; Copeland v. Fairview Land etc. Co., 165 Cal. 148, 153 [131 Pac. 119].) On the other hand, if we accept defendant's view that he was merely trying to prevent the plaintiff taking the water which was flowing in the pipe-line rather than to recapture the water that had already overflowed, it is clear that he could have accomplished this object without entering the premises of the plaintiff by merely stopping his pump. It is clear, then, that the defendant was not justified in using the force he did upon the person of the plaintiff in an effort to retain possession of the water, for such force was wholly unnecessary for that purpose. It is clear that what the defendant was insisting upon was not his right to regain the water which had overflowed on plaintiff's land or to retain the water in his possession, but rather his right to use the pipeline across plaintiff's land for the transmission of the water to Morro. He was perfectly willing that the plaintiff should use the water upon the terms agreed upon as soon as Morro had been supplied with the amount necessary for irrigating his place. The real question, then, is whether the defendant had a right to maintain his position upon the pipe-line for the purpose of continuing the flow of water through the pipe-line to the premises of Morro. For the purpose of its decision the district court of appeal assumes that the defendant had a right to maintain the flow of water in the pipe-line, but denied him the right to maintain that flow by any action which involved a breach of the peace. It is true that the interference by the plaintiff with defendant's right to the free flow of the water would be a nuisance. (Civ. Code, sec. 3479; 20 R. C. L., p. 401, sec. 22; Lytle Creek W. Co. v. Perdew, 65 Cal. 447, 455 [4 Pac. 426]; Civ. Code, sec. 3502.) If the defendant had been attempting to remove an obstruction in the pipe-line to the flow of water, it may be that these authorities would apply, although this point need not be determined. The situation here, however, is quite different.