it necessarily follows that they are likewise bound. (Shields v. Nathan, 12 Cal. App. 604; Emmons v. Barton, 109 Cal. 662.) The instant case, however, does not involve a fraudulent conveyance made by plaintiff's intestate. According to the complaint, the fraud and wrong whereby Mary Anne Holland was induced to part with the money was committed by Julia McCarthy, and since Mary Anne Holland in her lifetime might have brought suit to recover it, her personal representative not only has the power, but it is his duty to sue for the recovery thereof as a part of the estate of decedent, to which, as administrator, he is entitled. The cases of Tully v. Tully, 137 Cal. 60, and Estate of Page, 57 Cal. 241, cited by appellant as upholding the right of an heir to bring suit to quiet title to real estate, are not applicable, for the reason that such right is secured by the provisions of section 1452 of the Code of Civil Procedure.

Upon further consideration of the case, we are satisfied with the conclusion reached in the department decision.

The judgment is, therefore, affirmed.

VICTOR E. SHAW, J. pro tem.

We concur:

SHAW, J.

SLOSS, J.

MELVIN, J.

ANGELLOTTI, C. J.

WILBUR, J.

RICHARDS, J. pro tem.

Sac. No. 2459. Department One. February 16, 1918.

J. M. HOWELL COMPANY et al., Plaintiffs and Respondents, v. CORNING IRRIGATION COMPANY et al., Defendants and Appellants.

[1] WATER RIGHTS-ACTION TO ENFORCE JUDGMENT UNCERTAINTY -APPROPRIATE REMEDY.-Where the judgment in an action to ascertain and determine the respective rights of the parties in the waters of a stream, contains elements of uncertainty as to the use of the surplus waters, a new action to enforce the former judgment, and to quiet the title of the plaintiffs, and for an injunction, is the appropriate remedy to clear up the uncertainty.

[2] ID.-MUTUAL WATER COMPANY-PRIVATE CORPORATION.-A mutual water company devoting the water which it diverts exclusively to the use of its own stockholders, and not to the general public, is not engaged in public service and is not a public utility.

Appeal from the Superior Court of Tehama County-John F. Ellison, Judge.

For Appellants-Frank Freeman.

For Respondents-McCoy & Gans; P. H. Coffman, of Counsel. The defendants appeal from the judgment.

are

The plaintiffs, respectively, own tracts of land which riparian to a stream known as Thomes Creek, in Tehama county. The defendant, Corning Irrigation Company, is, and for many years has been, diverting water from said creek, and carrying the same to non-riparian lands belonging to its stockholders and there distributing the same to such stockholders for their use on such non-riparian lands. The object of the present action is to ascertain and determine the respective rights of the plaintiffs and the defendants in the waters of said stream, and to quiet the plaintiffs' title to such part thereof as they are entitled to have flow down to their lands. The principal defendant is the Corning Irrigation Company, the other defendants being directors of said company and not otherwise interested in the action.

The complaint alleges that on May 14, 1894, in an action by the predecessors in interest of the plaintiffs, against the said cor poration defendant, judgment was duly given, determining the respective rights of the parties in the creek; that the defendants have no right therein or thereto except as set forth and adjudged in said action, but that they have nevertheless diverted therefrom quantities of water greatly in excess of their rights under said judgment, and that they have violated the conditions of said judgment as to the manner of diverting water therefrom, greatly to the injury of the plaintiffs, and that unless they are restrained they will continue to do so, and that said defendants claim the right to take said waters in excess of the rights given to them by said judgment.

The judgment mentioned is made a part of the complaint. It declares that the defendant, Corning Irrigation Company, shall be perpetually enjoined from taking any of the waters of said creek to the lands of its stockholders, or at all, except to the extent and in the manner therein set forth. It fixes the point of diversion at which the defendant is allowed to take water, and the kind of ditch and diverting works by which it may do so; forbids the alteration of such diverting works, and further provides "that when there is an abundance and surplus of water in the said creek for all the uses and purposes of the riparian owners below the said point of diversion, including the use for the purposes of irrigation by ditches now constructed, then and at such time the defendant, the Corning Irrigation Company, may divert by and through the said ditch any amount of surplus water and convey and discharge the same into the water course known as Squaw Hollow". It further provides that when the water is low and insufficient for the uses of the said riparian owners, the defendant company shall not take or divert from the creek more than 100 inches of water measured under four-inch pressure, which quantity of water the judgment further provides, in effect, may be taken by said defendant at any time, provided the same is taken from the surface water flowing in the stream and not otherwise.

a

For answer, the defendants alleged that since the rendition of the said judgment of 1894, the defendant company has acquired by prescription the right to divert from said stream a quantity of water amounting to 4,000 miner's inches, measured under a fourinch pressure. The answer also alleges by way of estoppel, that during the interval between said judgment of 1894 and the beginning of this action, the plaintiffs have stood by, with full knowledge of the diversion by said defendant, and of the fact that said water has been distributed and used on non-riparian land, and of the fact that said defendant has expended large sums of money in the erection of works for conveying same, and have made no protest against such diversion or expenditure.

The findings of the court were that the defendant company has acquired no prescriptive right, and has no rights in the waters of the stream, except such as are given to it by the judgment of 1894; that the said defendant has at divers times diverted quantities of water from the creek greatly in excess of the amount permitted to it by said judgment, and has claimed the right to do so. It will be observed that the judgment of 1894 does not state the quantity of water necessary for the plaintiffs' use upon their riparian land, nor the amount, the excess of which may be deemed a surplus subject to diversion by said defendant. In its findings in the present action the court determined that the quantity necessary for plaintiffs' use was 2,500 inches, measured under a four-inch pressure, and that the facts alleged in the answer as an estoppel against the plaintiffs, are not true, but that said defendant has been accustomed to take from the surplus waters of the stream not necessary for the use of the plaintiffs, the quantity of 3,100 miner's inches, measured under a four-inch pressure.

The judgment appealed from declares that the defendant company shall be at all times entitled to take 100 miner's inches of water at the place of diversion described, provided that amount is flowing on the surface; that after that amount shall have been taken by said defendant, 2,500 miner's inches shall be allowed to flow down the stream for the use of the plaintiffs, and that the defendant, Corning Irrigation Company, may take through its diversion works and ditches, all the surplus not exceeding 3,100 miner's inches, measured under a four-inch pressure.

The defendants claim that the finding against the prescriptive right to the water the company has been taking, over and above that allowed by the judgment of 1894, is not sustained by the evidence. It is sufficient to say that at most there is a conflict in the evidence, with sufficient substantial evidence in favor of the finding of the court to support it. The excessive diversions of the defendant were interrupted by the plaintiffs from time to time, and so often that no adverse use thereof for a period of five years has occurred. Hence no prescriptive right to such water could accrue.

Even if it were true, as appellants claim, that this action is nothing more than an action upon the former judgment, we are not prepared to say that such a judgment could not be enforced by a new action as well as by proceedings in contempt. (Rowe v. Blake, 99 Cal. 167; Ames v. Hoy, 12 Cal. 11; Stuart v. Lander, 16 Cal. 373.) The present action, however, is more than a mere action to enforce the former judgment. That judgment contained elements of uncertainty. It allowed the defendant to take the surplus water not required for the use of the lands of the plaintiffs riparian to the stream. Whether this should be construed to mean the surplus over and above that required at the time of its rendition for use upon said lands, or the surplus in excess of what might from time to time thereafter be necessary therefor, is somewhat doubtful. The court below in the present action construed it to mean the surplus in excess of the quantity necessary in 1894 for plaintiffs' use, and the plaintiffs do not complain of this construction. It is clearly more favorable to the defendants than the opposite construction. But with that construction, the amount necessary for plaintiffs' use at that time is not stated with precision, and no facts are stated in that judgment from which it could be ascertained. Subsequent changes in physical conditions had increased the difficulty. The defendants had asserted the right to take from the stream a quantity of water that would deprive the plaintiffs of water necessary for their use, and their claims had been successfully resisted from time to time by the plaintiffs. This was the assertion of rights to water in excess of those given it by the judgment. The complaint asks not only for the enforcement of the former judgment, but for the quieting of their title against the new and additional claims of the defendants, and for an injunction against the taking of water by the defendants in violation of the former judgment, or in excess of the amount allowed thereby. [1] It is obvious that an action will lie to quiet title to riparian rights in a stream, and it seems equally clear that a new action is the appropriate remedy to clear up and remove the uncertainty existing on the face of the former judgment, and by reason of subsequent events, as to the quantity to be allowed to run down to plaintiffs' land, so that the surplus available to defendants can be more readily determined than it could be by an inquiry as to plaintiffs' needs in 1894, or at any other time when the surplus was in question, in case the former judgment should have been construed so as to make that the test.

The defendant company claims that it is a public service corporation; that it has been taking the excess water over and above that allowed by the judgment of 1894, and applying the same to public use; that it has done this for many years with the knowledge of the plaintiffs, who have allowed a large community to be built up by the use of said water, and that consequently an estoppel arises under the doctrine established by numerous cases in this court. This doctrine is reviewed and stated at length in Miller v. Enterprise etc. Co. (169 Cal. 415). The defendant has not brought itself within the doctrine. It has nowhere alleged that it is using its water in public service. On the contrary, the answer alleges, and it is not disputed, that it is a mutual water company, devoting the water which it diverts exclusively to the use of its own stockholders, and not to the general public. [2] Such a corporation is not engaged in public service and is not a public utility. (McFadden v. Board, 74 Cal. 571; Hildreth v. Montecito, 139 Cal. 29; Barton v. Riverside Water Comраnу, 155 Cal. 518.) It appears that the case was fairly and thoroughly tried by the learned judge of the superior court, and that the conclusions at which he arrived are eminently reasonable and fair to the defendants. We find no cause for interfering therewith.

a

The former judgment, it may be well to add, constituted limitation upon the riparian rights which were parcel of plaintiffs' lands bordering upon the stream. It deprived them absolutely of the right to 100 miner's inches of the surface flow, and so far as it permitted the defendant company to take the surplus not necessary for plaintiffs' use, it was an invasion of the technical right of a riparian owner to the full flow of the stream. It is conclusive on the parties and their successors in interest. The defendants in this action do not complaint of the limitation of the amount to be taken of the surplus water to 3,100 miner's inches.

The judgment is affirmed.

We concur:

SLOSS, J.

SHAW, J.

RICHARDS, J. pro tem.

S. F. No. 7488. In Bank. February 16, 1918. *MARGARET A. HARDING and GEORGE K. HARDING (Her Husband), Plaintiffs and Appellants, v. LIBERTY HOSPITAL CORPORATION (a Corporation), Defendant and Respondent.

[1] NEGLIGENCE-MALPRACTICE BY HOSPITAL SURGEON-NATURE OF ACTION-STATUTE OF LIMITATIONS. - An action against a hospital association for damages for the negligence of its chief surgeon in the setting of a fractured limb is an action ex delicto and not one ex contractu, and barred by the provisions of subdivision 3 of section 340 of the Code of Civil Procedure unless commenced within one year from the date of the setting, regardless of the fact of the existence of a contract between the plaintiff and defendant for the furnishing of adequate and competent surgical treatment.

[2] ID. INJURIES FROM NEGLIGENCE-TIME FOR COMMENCEMENT OF ACTIONS.-Actions for injuries caused by the negligent acts of another or his agent must be commenced within the period of one year from the date of the alleged injury, and the fact that the parties stand in contractual relation to each other does not operate to change the rule or extend the time for the commencement of such actions.

Appeal from the Superior Court of the City and County of San Francisco-John Hunt, Judge.

For Appellants-Edwin T. McMurray, H. Clyde Harms.

For Respondent-John A. Percy.

This is an appeal from a judgment in favor of the defendant after its demurrer had been sustained to the plaintiffs' first amended complaint, the latter declining to further amend. The first amended complaint alleged in substance that at some date prior to October 11, 1913, the plaintiff Margaret A. Harding had entered into a contract with the defendant, a corporation operating a hospital and carrying on therein "the general business of furnishing medicines and medical and surgical treatment, ambulance and hospital care to the sick and injured", by the terms of which contract said corporation agreed to furnish to the said plaintiff medical and surgical treatment "when the same may be rendered necessary by any accidental injury or in sickness or disease"; that on the 11th day of October, 1913, the said plaintiff suffered a fracture of certain bones of her left leg at the knee joint, which rendered it necessary for her to have medical and surgical treatment under the terms of said contract; and that on

*On hearing after judgment in District Court of Appeal, First District (24 Cal. App. Dec. 1021).