The land described in the complaint was entered with other lands as a homestead in 1899. The government patented the land to the entryman in 1891, and the appellants are his successors in interest. The entry and the patent, of course, described the land according to the survey of 1865. there has been a gradual shifting of the main | [4] The rule is as much applicable to the channel of the river to the southward. While government as it is to private individuals. none could remember when there was not If the government chooses to grant its lands more than one channel at this plaec, all agree | making a running stream one of the boundthat the south channel is now and has al- aries of the grant, it must expect this part ways been the main channel. of the boundary to change as time goes on. Ordinarily it gains in one place what it loses in another, and on no principle of justice can it say that it is not to be subjected to the general rule. And such we understand to be the holding of the Supreme Court in Jefferis v. East Omaha Land Co., 134 U. S. 178, 10 Sup. Ct. 518, 33 L. Ed. 872. There the boundary was the Missouri river. The patent to the land made to the individual by the gov ernment was made some years after the survey, during which time there had been an accretion to the land by the changing course of the stream. It was held that a patent to the land according to the lot number of the If we have made ourselves understood by the foregoing statement, it is apparent that the surveys made of the different parts of the township do not connect. Stated more particularly, there is between the meander lines of the two surveys an irregular shaped track of land something more than the width of the river over which the surveys do not ex-official plat of the survey conveyed to the tend. It is in this area that the tract in dispute lies. The respondent contends that, because the government surveys do not close over it, it is unsurveyed public land subject to settlement in its present condition, and subject to entry when the government chooses to extend the surveys over it; while the appellants contend that it is an accretion to the tract patented to their predecessor in title, and is theirs in virtue of their title deeds. [1, 2] There is no disagreement between counsel as to the applicable principles of law. Meander lines run in surveying fractional portions of the public lands bordering upon streams, whether navigable or unnavigable, are run, not as boundaries of the tract, but are run for the purpose of defining the sinu osities of the banks of the streams and as a means of ascertaining the quantity of land in the fractions; that the stream itself is the actual boundary in all cases, the part of the stream which forms the boundary differing in the different states according to the local law; that the local law of this state recognizes the line of ordinary high water as the boundary line on all navigable streams, and the thread of the stream as the boundary on all streams that are unnavigable. [3] Another rule is that, when grants of land border on running water, and the course of the stream is changed by that process known as accretion—that is to say, the gradual washing away on the one side and the gradual building up on the other-the owner's boundary changes with the changing course of the stream. As was said by the Supreme Court of the United States in New Orleans v. United States, 10 Pet. 662, 9 L. Ed. 573: "No other rule can be applied on just principles. Every proprietor whose land is thus bounded is subject to loss, by the same means which may add to his territory; and as he is without remedy for his loss, in this way, he cannot be held accountable for his gain." patentee the title to all accretion which had been formed between the time of the survey and the date of the patent. [5] On the other hand, it is equally the rule that when a stream, which is a boundary, from any cause suddenly abandons its old channel and creates a new one, or suddenly washes from one of its banks a considerable body of land and deposits it on the opposite bank, the boundary does not change with changed course of the stream, but remains as it was before. This sudden and rapid change is termed in law an avulsion, and differs from an accretion in that the one is violent and visible, while the other is gradual, and perceptible only after a lapse of time. must recover on the strength of their own [6, 7] It is the rule also that the appellants title, and not on the weakness of their adis not within the defined boundaries of the versary's. And, since the land in controversy conveyances under which they hold, it must appear, if they are to recover, that the disputed land has been added to their original boundaries by accretion. Does the evidence preponderate in favor of this view? It is our conclusion that it does. Some of the salient facts we have herein before set out. In addition it appears that the river has not within the memory of the witnesses testifying on the subject ever been subject to sudden or violent changes. All testify that there has been a drift of the main channel of the river to. the south, and all agree that the change has been gradual, not the result of any sudden change. There is, of course, a period between the time of the original surveys and the time when the recollection of the witnesses begin which is not covered by the evidence, and it is evident also that during this period the river formed two additional channels at this place. But we cannot think this argues against the general conclusion that the drift of the main channel has been gradual rather than sudden or avulsive. The record is silent as to evidences of abandoned channels, and (205 P.) these it would seem must certainly exist if the change in the course of the stream had been other than gradual. It is our conclusion that the land in dispute is a part of the appellant's holding rather than a part of the unsurveyed public lands of the United States. The judgment is therefore reversed, and the cause remanded, with directions to enter a judgment for the appellants, plaintiffs below. of others, and such rights must be exercised and the use must be made only on the parcel to which the rights attach. 8. Waters and water courses 44-Riparian owner could not take water on tract and use it on another. Where a tract of land was partitioned and the right to water in a stream was divided, and thereafter owner of one of the parcels acquired another tract of land having riparian rights, the latter could not take water on the last-ac PARKER, C. J., and BRIDGES, MITCH- quired tract for use on the parcel acquired unELL, and TOLMAN, JJ., concur. (188 Cal. 474) PARKER v. SWETT et al. (Supreme Court of California. March 24, 1922, 1. Trial 66-Reopening discretionary. Matter of permitting a party to reopen the case to introduce evidence is discretionary. 2. Easements 30 (2)-Right to construct pipe line not lost by disuse. The right of a grantee under a reservation in a deed to construct a pipe line over other land of the grantor, was not lost by disuse. 3. Waters and water courses rights not lost by disuse. 48-Riparian Riparian rights are not lost by disuse. 4. Appeal and error 1170(7)—Introduction in evidence of judgment held not prejudicial "miscarriage of justice." Admission in evidence of judgment roll in another case in which an appeal was pending was not a miscarriage of justice, within Const. art. 6, § 42, where the judgment was subsequently affirmed. 5. Partition 12(1)—Riparian rights may be divided. Where a tract of land on a stream was partitioned by the parties, riparian rights could also be divided and be preserved as to both parcels by reservations in the deeds. 6. Judgment ~743(2)—Adjudication as to extent of riparian rights conclusive on parties in another action. An adjudication as to riparian rights in a stream was res adjudicata in a subsequent action between the parties. 7. Waters and water courses 40-Rights of riparian owners mutual and reciprocal. The rights of riparian proprietors on the same stream with respect to each other are mutual and reciprocal, and neither has right to the whole stream as against the rights of others, and each is entitled to his reasonable share thereof considering the rights and needs der the partition deeds, so as to deprive the other parcel of its share of water. In Bank. Appeals from Superior Court, Napa County; Henry C. Gesford, Judge. Actions by Homer C. Parker against E. C. Swett and others, and by the same plaintiff against J. F. Carlston and others. Judgments for plaintiff, and defendants appeal. Judgment in the first case affirmed and that in the second case modified and affirmed, with directions. R. P. Henshall, of San Francisco, for appellants. Samuel C. Wiel, of San Francisco (Clarence N. Riggins, of Napa, and William E. Colby, of San Francisco, of counsel), for respondent. SHAW, C. J. The above-entitled cases were tried separately and at different times. Separate judgments were given, and separate appeals were taken. They both concern the same property and rights, and the points involved are so closely connected that it will simplify matters to decide them in one opinion. We will treat each case separately in the order of their respective numbers. Case S. F. No. 9559: This is an action to quiet the alleged title of the plaintiff to certain easements, against the claims of the defendants. This is the second appeal in the cause. The decision on the first appeal was made by the District Court of Appeal on February 26, 1919, reversing, in part, the judgment of nonsuit previously rendered by the trial court. 40 Cal. App. 68, 180 Pac. 351. Thereafter a new trial was had in the court below, and judgment was given for the plaintiff. The defendants Swett and Grange appeal. The defendant Grange, by his answer, disclaimed all interest in the matter set up in the complaint. We are at a loss to understand why he joined in the appeal. But it is obvious that, as to him, the judgment must be affirmed. The matters involved in the present appeal concern only the plaintiff Parker and the defendant Swett. On or about May 7, 1890, Thompson and Chase, predecessors in interest of both parties, were the owners as tenants in common of the 722 acres of land to which the rights For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes that plaintiff is also the owner of a right of way for a pipe line, to be laid in and along the bed of Chase creek from said point of diversion to plaintiff's tract of land, and of the right to enter on the Swett land to view, examine, change, repair, or preserve the pipe so laid, and to make and maintain a proper division of said water, which rights are also declared to be appurtenant to the plaintiff's land. and easements here involved pertain. A and undiminished to said point of diversion small stream, known as Chase creek, rising in and to take out at that point one-half of the the hills northeasterly of said tract, enters water thereof there flowing and carry it the land near the northeast corner and runs away in pipes or otherwise and use the same, westerly for a considerable distance and then and that said right is appurtenant to "and southerly through the tract to the southern part and parcel of" plaintiff's said land; boundary thereof. On May 7, 1890, a parti- | tion was effected between said parties by which the southern portion, containing 298 acres, was given to Thompson, and the northern portion, containing 424 acres, to Chase. The boundary line between them was a line running through the central part of the tract from a point on the western line, north 68% degrees east, to the eastern boundary thereof. The northerly line of the tract was indented by another tract not then owned by The appellants claim that these provisions the parties. The division line ran along the of the judgment assume that the partition south line of this other tract and as a result deeds granted to the plaintiff an interest in the land partitioned to Chase was cut into the stream, and that this is contrary to the tracts, the westerly parcel containing 370 decision of the district court of appeal on the acres, designated herein as "tract 1," and the previous appeal which has now become the easterly parcel 54 acres, designated herein law of the case. We do not so understand as "tract 2." There was a space twenty the previous opinion. That opinion shows chains wide between them. The partition that, after this partition, Chase acquired the was made by deeds whereby each party con- tract designated in the record as "tract 3," veyed to the other his interest in the tract being the land lying between tracts 1 and 2 thereby set apart to the other. The ease- set off to him by the partition, and it dements now in question were set forth in the clares that the deeds show no intention to deed of Thompson to Chase and they were convey anything but a right to the use of the reserved by Thompson as burdens or servi- water which could be obtained on the northtudes upon the northern parcel, tract 1, andern half of the original tract of land at the as easements appurtenant to the southern place called the point of diversion, the northparcel. They were five in number, but the ern one-half referred to being the aforesaid only easements now involved are those num-tract 1. This right would constitute an inbered 3 and 4, which are as follows: terest in the stream flowing at that point, 3. "A right to take, use, appropriate, divert, and in the water to be obtained there. But lead, and carry away, in pipes or otherwise, this is not inconsistent with the fact that the one-half of the waters flowing or that may flow, right so secured to Thompson was a riparian in the stream on said premises, to be taken at right and a part of the riparian right in the or near the point where the waters of said stream which was part and parcel of the enstream are now partially diverted in pipes lead-tire original undivided tract before the paring to the dwelling on said premises." 4. "The right of way for a line of pipe for tition. Thompson was a half owner in these water from the point where said waters may be rights, as well as of the land of which they diverted over, across, in, and through said were part. The intention of the partition bepremises to the said adjoining tract on the ing to divide the land between them and set south, such pipe to be laid so as not to inter-off to each in severalty his due proportion fere with the proper cultivation of said premises, and also the right at all times to enter in and upon said premises for the purpose of viewing, changing, repairing, or preserving said pipe that may be so laid, and making and maintaining a proper division of said water." The point of diversion of the water mentioned in No. 3 is situated near the northeast corner of the tract 1, now owned by Swett. The third reservation, it may be noted, reserved to Thompson, as an appurtenance to the tract conveyed by Chase to him, the right to take and use "one-half of the water flowing or that may flow" in Chase creek at said point of diversion on tract 1, designated in the record as the "1890 point." The judgment declares that the plaintiff, as against the defendants, is the owner of the right to have Chase creek flow naturally thereof, such intent would include the riparian rights in the stream. The obvious purpose and effect of the easements reserved to Thompson was to provide a means whereby he could obtain his share of the water and carry it to the land set off to him for use thereon in the exercise of his riparian right. It therefore accomplished a division of the riparian rights by assigning one-half the water to each party, and also a reservation in favor of the Thompson land of easements in the Chase land to enable Thompson to obtain and use the water by taking it out of the stream on the Chase land. Without the reservations he would have had no rights of access at that point. It was not necessary to also expressly reserve the riparian right to one-half of the water, for that would go with the land set off to Thompson, which also (205 P.) Fairview L. & W. Co., 165 Cal. 106, 131 Pac. 119. The decree, however, declares that plaintiff's water right is not only appurte nant to his land, but is "part and parcel" thereof, which means that it is a riparian right and consequently, that it is, as such, not lost by disuse. abutted on the stream. The insertion of the | Co., 172 Cal. 701, 158 Pac. 177; Copeland v reservations was an implied recognition of that fact. The opinion also declares that the partition deeds did not transfer or convey any right or interest in the water rights pertaining to tract 3, through which also the stream runs. This must have been so, since neither of them at that time had any interest in tract 3. Afterwards, in the year 1895, Chase acquired tract 3, and Swett is now the owner thereof. But his ownership of that land, of itself confers on him, as against other riparian land on the stream, no right in the stream, except to take a reasonable part of the water for any beneficial use on that land, and not elsewhere. We think the present decree is not objectionable in its declaration that the plaintiff's right to take the water at the "1890 point" is "part and parcel of" his land, that is to say, riparian in character. The judgment proceeds to declare the quantity of water which constitutes the natural flow at the point stated and declares that the plaintiff is entitled to one-half thereof and the defendant to the other half. No complaint is made of this portion of the judgment. It appears from the findings that Swett has acquired the parcel of land known as tract 3, situated between the two parcels conveyed to Chase by Thompson in 1890, and that the stream in question passes through this tract. The appellant insists that the court should have decreed that the easements created by the deed from Thompson to Chase did not affect the water rights pertaining to tract 3. A sufficient answer to this point is that the decree does contain such a provision. Consequently, notwithstanding the other provisions of the decree, the defendant may make a reasonable use of the water on said intervening land, as riparian owner thereof, subject to the correlative and reciprocal rights of other riparian owners of land on the stream. The judgment in case S. F. No. 9559 is affirmed, respondent to recover costs of appeal. Case S. F. No. 9748: In this action the complaint alleged plaintiff's ownership of the land claimed by him in [1] After the trial had closed and the cause had been submitted to the court for decision, it was reopened at the request of the appellants for the sole purpose of introducing additional testimony to identify the loca-case S. F. No. 9559, aforesaid, that the defendtion of the roads and the quarry mentioned in the reservations not here involved. The court did not err in refusing to allow the defendant to reopen the case upon other subjects. The matter was discretionary, and there is not even an attempt to show an abuse of discretion. ants were in possession of the tract designated as tract 3, being the land situated between the two tracts of land belonging to' Swett, designated as tracts 1 and 2, respectively, as aforesaid, and that Chase creek flowed across defendant's tract 3 in a westerly direction to the point of diversion, here record before us this point is called the "1890 point," and for convenience we will use that designation hereafter. It is alleged that the plaintiff owns the right to have said creek flow naturally and undiminished to said 1890 point, and there to take one-half of said natural flow and carry the same to the plaintiff's said land for use thereon; that the defendants have diverted all the natural flow of the creek above said 1890 point, so as to prevent any water from coming down to said point and deprive the plaintiff of all use of said water, that they claim the right to do so by reason of their possession of said tract 3, and that said claim is without right. [2, 3] The appellants insist that the injunc-inbefore mentioned, on said tract 1. In the tion against interference by defendants with the rights adjudged to the plaintiff should have been contingent upon the construction by the plaintiff of a pipe line from the point of diversion to plaintiff's land. It seems that no such pipe line has ever been constructed. Inasmuch as these are all vested rights, we can perceive no reason why the court did not have the right to declare that the defendants should be enjoined from interfering therewith. Even if we assume that the right of plaintiff to take water from the stream does not come to him as a partition of the riparian right attaching to the land, but only by virtue of the reservations in the deeds, it would not be lost by disuse. Where rights or easements are acquired by grant, or by a reservation having the effect of anting that she is in possession of same, and implied grant (Wood v. Boyd, 145 Mass. 179, 13 N. E. 476), the owner does not lose them by mere disuse. Parker v. Swett, 40 Cal. App. 74, 180 Pac. 351; Smith v. Worn, 93 Cal. 206, 28 Pac. 944; Currier v. Howes, 103 Cal. 437, 37 Pac. 521; Petitpierre v. Maguire, 155 Cal. 250, 100 Pac. 690; People v. S. P. The defendants answered, averring that defendant Swett is the owner of tract 3, admit alleging that the possession of the other defendants is subordinate to her possession and that their rights depend upon her rights. It also avers that the natural flow of Chase creek does not reach the 1890 point and denies that plaintiff has any right to the water thereof at that point. We learn from the briefs, although it does not appear in the record, that the diversion by the defendant on tract 3 complained of by the plaintiff, was the collection of all the water of the stream at some point on that tract and carrying it down in a pipe to a concrete reservoir constructed by defendant on his tract 1 on which the 1890 point is situated, and there storing it for his own use on said tract 1 to the exclusion of any use thereof by the plaintiff. The record contains remarks and circumstances indicating that this is true, and it is not disputed by the defendant. The findings are to the effect that plaintiff [ said rights of the defendant, the plaintiff is is the owner of the land as alleged in his entitled, as part and parcel of his land, to complaint; that the defendant Swett is the have said creek flow naturally and undiminowner of said tract 3; that Chase creek is a ished to said 1890 point and there to take natural stream of running water arising for use on his said ranch "the natural flow of easterly of tract 3 and flowing across the said Chase creek"; and that the plaintiff's same into the defendants' tract 1 to the 1890 title thereto be quieted and the defendants be point aforesaid; that said tract 1 and tract enjoined from claiming adversely thereto. 2 and the plaintiff's said land was, in 1890, a single undivided tract owned by Thompson and Chase as tenants in common, that all of said undivided tract was riparian to Chase creek, that the same was partitioned between Chase and Thompson, as previously stated, that by said partition deed there was set off to plaintiff's predecessor, and preserved to plaintiff's said land, the riparian right which said land had as a part of the original undivided tract, and that by said partition deeds the predecessor of Swett granted to the predecessor of plaintiff, "as a means of enjoying the riparian rights of the Thompson ranch, the right to exercise said riparian rights at said 1890 point" and to take the water at that point, together with the right of way for a pipe line to carry water from that point to plaintiff's said land; that said tract 3 and tract 1, belonging to defendant Swett, and said Thompson ranch belonging to plaintiff, are each and all riparian to said Chase creek; that as part and parcel of tract 3, defendant has, as against the plaintiff, the right as a riparian owner of tract 3 to take a reasonable share of the waters of the creek, but no more, for reasonable use upon tract 3, and not elsewhere, and for no other purpose, and that the defendants have no other claim or right in the waters of said creek by virtue of or because of their ownership or possession of tract 3. It was further declared that tract 3 is mountainous land not capable of agricultural use, except to pasture stock thereon, and that the only use of said water that can be made on said tract is for furnishing drinking water for stock pastured thereon; also that the defendants, against plaintiff's protest, have diverted the water from said creek and deprived the plaintiff thereof at said 1890 point, and that they have not used the same in any manner on said tract 3. The material portions of the judgment are that plaintiff is the owner of the land aforesaid together with the water right in said Chase creek as aforesaid; that defendant Swett is the owner of tract 3; that tract 3 and tract 1 aforesaid, and also the land of the plaintiff, are riparian to said creek; that defendant Swett is entitled to take of the water of Chase creek a reasonable share and no more for use upon said tract 3, and not elsewhere or for any other purpose; that the only use of which it is available there is to supply water for stock pastured thereon during the period between January 1st and June 30th of each year; and that, except as to We also infer from the briefs that, after the decision by the district court on the former appeal in February, 1919, affirming the judgment of nonsuit as to tract 3, the plaintiff began the present action to quiet plaintiff's title to the water of Chase creek against claims of the defendant based on their possession of tract 3. The judgment appealed from in case S. F. No. 9559 was rendered several months before the trial of the present action. At the opening of the trial of this action the plaintiff offered in evidence the judgment roll in the action previously tried as aforesaid, claiming the right to do so and to have the same admitted and considered as a final adjudication between the parties, under a stipulation made in the other action on May 3, 1920, as a part of a stipulation therein extending the time to file a transcript on appeal. The portion of the stipulation referred to is as follows: "In consideration for the foregoing extension of time, said defendants waive pendency of said appeal as an objection to use by plaintiff hereafter, whether in this action or in any other. of the judgment roll in the case above entitled." At the time of the trial of the present action, October 8, 1920, the appeal referred to was still undetermined. No objection was made to the introduction of the judgment roll, and the same was received in evidence. At the close of the trial, however, the defendant moved to strike out the judgment roll on the ground that it was not admissible as a final judgment, or as proof of the facts adjudicated thereby, because it had not yet become final, the appeal therein not yet having been decided. This motion was denied. In the course of the trial the defendant offered evidence to show the amount of water flowing in Chase creek on the lands in controversy. The plaintiffs objected on the ground that the judgment introduced in evidence adjudicated that matter, and that the defe |