limitations only extended to a reasonable time from the date thereof. Undoubtedly the commission was clothed with authority to determine what in fact was a reasonable delay for the commencement of the action and inasmuch as the commissioners have determined this question we are not in a position to overrule their findings. While the language of the commission to the effect that it was without jurisdiction to determine that the waiver nullified the plea of the statute of limitations, is somewhat equivocal and not altogether clear in its meaning, it is probable that as suggested by counsel for respondents, "the person drawing the findings for the commissioners merely meant to convey the idea that as the plea of the statute of limitations had been sustained the commission would not hear the case in chief". But whatever may have been the intent of the commissioners in the use of the word "jurisdiction" the fact remains that they had the right to apply the statute of limitations under the facts as presented, that they did apply it, and that therefore their finding must stand.

Upon this record we may not review the judgment.

The order to show cause is discharged and petitioner's prayer for the issuance of a writ of certiorari is denied.

We concur:

ANGELLOTTI, C. J.

SHAW, J.

VICTOR E. SHAW, J. pro tem.

WILBUR, J.

SLOSS, J.

RICHARDS, J. pro tem.

MELVIN, J.

S. F. No. 7395. In Bank. February 26, 1918.

*THE EMPORIUM (a Corporation), Plaintiff and Appellant, V. CITY OF SAN MATEO and A. MCCOMB, Marshal of said City of San Mateo, Defendants and Respondents.

[1] MUNICIPAL CORPORATIONS-ORDINANCE OF CITY OF SIXTH CLASS -LICENSING OF DELIVERY WAGONS-POWER OF MUNICIPALITY. A city of the sixth class organized under section 862, subdivision 10, of the Municipal Corporation Act, has power to enact an ordinance providing for the levying and collection of a license tax upon every person, firm or corporation driving, operating or maintaining upon any street in the city a delivery wagon or wagons, at a specified rate for each such wagon according to its tonnage capacity.

[2] ID.-APPLICABILITY OF ORDINANCE CORPORATION ENGAGED IN BUSINESS OUTSIDE OF MUNICIPALITY-MAINTENANCE OF LOCAL DELIVERY SYSTEM.-Such ordinance is applicable to a corporation engaged in business in another municipality, which has established and regularly maintains in the municipality enacting the ordinance a local delivery system, with horses, wagons and employees regularly engaged in the occupation of going daily to the railroad stations of such city, and there receiving and loading on their wagons the goods sent to the places of distribution by rail and thence carried by regular deliveries upon and along the street of such city to the places of business or residence of the purchasers.

*On hearing after judgment in District Court of Appeal, First District (25 Cal. App. Dec. 37).

Appeal from the Superior Court of San Mateo County-George H. Buck, Judge.

For Appellant-Dudley D. Sales, Theodore A. Bell.

For Respondents-Charles N. Kirkbride, City Attorney; Joseph B. Gordon.

BY THE COURT.

This appeal was first heard in the district court of appeal for the first district, where the following opinion, prepared by Mr. Justice Richards, was filed:

"This is an appeal from a judgment in the defendants' favor following an order sustaining their demurrer without leave to amend.

"The complaint shows that the plaintiff is a corporation engaged in the retail dry-goods business in the city of San Francisco having customers within said city and also within the several cities and towns in proximity to said metropolis and around the San Francisco bay, among which is the city of San Mateo; that for the purpose of delivery of articles of merchandise purchased from it by residents of or in the vicinity of the city of San Mateo the plaintiff maintains within said city of San Mateo a system of local delivery, consisting of horses and wagons in charge of its employees, whose daily duty it is to receive such articles of merchandise at the stations in said city to which they have been shipped by rail, there to load same upon such delivery wagons and deliver the several articles of merchandise to their respective purchasers within and about said city; that the city of San Mateo has an ordinance entitled 'General License Ordinance', which provides, in subdivision 13 of section 11 thereof, for the levying and collection of a license tax upon every person, firm or corporation driving, operating or maintaining upon any street in said city a delivery wagon or wagons, at a specified rate for each such wagon according to its tonnage capacity. The defendants are averred to have persistently attempted to collect the amount of license required by this ordinance from the plaintiff, and this action was instituted to enjoin them from so doing. The plaintiff contends that the ordinance is invalid for several reasons, and also that even though generally valid it is inoperative in its application to the plaintiff.

[1] "With respect to the power of the city of San Mateo to enact the ordinance in question we think its authority to do so was ample under section 10 of article 11 of the state constitution; and also under section 862, subdivision 10, of the Municipal Incorporation Act, under which San Mateo was organized as a city of the sixth class.

"The main question in the case arises out of the disputed applicability of the ordinance to the plaintiff, its contention in that behalf being that the power conferred by the constitution and statute upon the city of San Mateo and attempted to be exercised in the form of the ordinance in question was that of imposing a tax upon business privileges, and that as such said ordinance must be confined in its operation to such business as is transacted and carried on in such city and town, and under the express terms of the grant of power to it in the act of its incorporation; and hence that the plaintiff, as a business institution established and being conducted in San Francisco, is not subject to the terms of said ordinance.

"It may be conceded that if the case presented by the complaint shows that the plaintiff, selling articles of merchandise in and at its place of business in San Francisco to persons residing in the city of San Mateo and its vicinity, and as an incident to such sales, was engaged in making such casual and occasional deliveries of such merchandise in San Mateo and other outside towns or cities as their retail sales therein required, by means of delivery wagons going out from its said place of business in the metropolis and passing over and along the streets of the city of San Mateo in the course of making such deliveries, the said plaintiff would not be subject to the imposition or collection by such outside municipality of a license tax upon its said delivery wagons. It would seem to be the rule that such use of the streets of a city as would be merely occasional and incidental to a business conducted elsewhere than within its boundaries would not be the proper subject of taxation. (In re Smith, 24 Cal. App. Dec. 445.) On the other hand, when a business institution, though located as to its central place of conduction or of the sale of its goods or products in one city or town, conducts through delivery wagons or other vehicles a regular system of delivery to customers within another municipality, the latter under proper authority may impose a license tax upon the wagons or other appliances of the distributing business which is thus actually done within it and upon and along its streets. (Memphis v. Bataile, 55 Tenn. 524; City of Carterville v. Blystone, 141 S. W. 701; Wonner v. Carterville, 142 Mo. App. 120.) These authorities from other jurisdictions seem to us to correctly state the rule in this regard, and they are not out of harmony with the recent case of Bramman v. City of Alameda, 162 Cal. 648, which upon a somewhat different state of facts lays down broad rule respecting the powers of municipalities in this state to levy taxes for revenue and regulation upon business privileges conducted within them, to the extent of holding that under a proper classification the city of Alameda had power to pass an ordinance imposing a license tax upon persons doing a certain business within it, and also upon the delivery wagons of those engaged in such business who maintained, in addition thereto and in aid thereof, a system of delivery wagons within the municipality. [2] The present action presents an even stronger case for the application of the latter and, we think, the better rule. The plaintiff in the instant case, as its complaint affirmatively shows, has not been satisfied to make deliveries of its goods sold to patrons in San Mateo through the occasional and purely incidental means of delivery wagons operated as an immediate adjunct to its drygoods store in San Francisco, and using the streets of San Mateo therefor in a transient way; but on the contrary the plaintiff has established and regularly maintains in the said city of San Mateo a local delivery system, with horses, wagons and employees regularly engaged in the occupation of going daily to the railroad

a

stations of said city, and there receiving and loading upon their said wagons the goods and merchandise of the plaintiff sent to said places of distribution by rail and thence carried by regular deliveries upon and along the streets of said city to the places of business or residence of the persons purchasing the same. In other words, the complaint herein places the case in precisely the same position it would have been had the plaintiff, instead of organizing and equipping its own local delivery system in San Mateo, made a contract with a local delivery establishment for the sole carriage and delivery by it of the goods of the plaintiff shipped to said point by rail, which local institution would seek to avoid the burdens of the ordinance in question upon the ground that it and its activities were merely incidental to the business of the plaintiff conducted in San Francisco. This statement of the situation illustrates the distinction in principle between the different lines of cases cited by the respective parties to this controversy. The business which the defendants are seeking to bring within the scope of the ordinance is not that which the plaintiff is conducting at its San Francisco store, but is that which it is maintaining in its regular local delivery system within and upon the streets of San Mateo. Under the foregoing circumstances as outlined by its own pleading we are entirely satisfied that the plaintiff has brought itself within the taxing powers of the city of San Mateo, and that the ordinance in question is not only valid as within the scope of the powers of the municipality to enact the same, but is also valid in its application to the plaintiff upon the state of facts disclosed in this complaint.

"Judgment affirmed."

Upon petition of the appellant, the cause was ordered transferred to this court. After careful consideration of the points presented, we have reached the conclusion that the opinion of the district court of appeal makes an entirely correct and satisfactory disposition of the questions presented.

For the reasons therein stated, it is ordered that the judgment appealed from be affirmed.

Sac. No. 2465. In Bank. February 27, 1918.

E. CLEMENS HORST COMPANY (a Corporation), Plaintiff and Appellant, v. NEW BLUE POINT MINING COMPANY et al., Defendants and Respondents.

Sac. No. 2466. In Bank. February 27, 1918. RALPH H. DURST, Plaintiff and Appellant, v. NEW BLUE POINT MINING COMPANY et al., Defendants and Respondents.

Sac. No. 2467. In Bank. February 27, 1918.

ROSE FRANCES DURST, as Executrix etc., Plaintiff and Appellant, v. NEW BLUE POINT MINING COMPANY et al., Defendants and Respondents.

[1] WATER RIGHTS FOREIGN WATERS-RIPARIAN OWNERS-APPROPRIATORS.--A riparian owner has a right to the usufruct of the natural water of the stream, but an appropriator of the waters artificially added is a taker of the corpus of that which exists in the stream only by virtue of its abandonment.

[2] ID. SURPLUS WATERS-RIGHT OF APPROPRIATOR. If the surplus waters would not in the course of nature reach appellant's land, the appellant may not complain of being deprived thereof either by the producers of the surplus, by their assignees, or by a stranger to their title, who appropriated the abandoned excess for proper purposes. The appropriator merely secures the corpus of the water thus escaping as personalty, but does not thereby secure or acquire the right to the continuous flow of such waters.

[3] ID. APPROPRIATION OF SURPLUS WATERS-PRIORITY RIGHTS.Where the parties are upon an equal footing with reference to the surplus waters, the one who first secured it may not be deprived of the right to the use of it, even outside of the natural watershed, by one claiming as a lower riparian proprietor.

[4] ID. JUDGMENT QUESTION AS TO DEFINITENESS. A judgment that defendants are entitled to all of the foreign waters not exceeding 1400 inches and are enjoined from taking more than that quantity is not subject to attack on the ground that it is not definite.

[5] ID. JURISDICTION.-Where the plaintiff was seeking to quiet its right to the natural flow of a stream and its tributaries at its land in Yuba county, the plaintiff's right was a part and parcel of its Yuba county lands and the action was properly commenced in Yuba county, even though a tributary has a separate name and extends through another county.

Appeal from the Superior Court of Yuba County-Eugene P. McDaniel, Judge.

For Appellant-W. H. Carlin, Samuel C. Wiel.

For Respondents-Bert Schlesinger, James F. Sheehan, C. J. Heggerty, Knight & Heggerty, F. T. Nilon, Byron Coleman, John Mulroy.

Plaintiffs appeal from parts of judgments identical in three cases involving the flow of Bear river and its tributary Wolf creek to the lands of plaintiffs in Yuba and Placer counties. The three appeals are by stipulation to be governed by the decision based upon the transcript in the case entitled "E. Clemens Horst Company vs. New Blue Point Mining Company".

E. Clemens Horst Comany (hereinafter to be known as "plaintiff" or "appellant") has owned for more than a quarter of a century land riparian to Bear river. The water flowing to said land comes partly from a tributary of Bear river known as Wolf creek which has its confluence with the river above plaintiff's land. Upon Wolf creek the predecessors of defendants maintained a dam. This dam was completed in 1862 and was constructed at large cost and has been maintained by defendants or their predecessors in interest ever since. Heading at this dam was a ditch sometimes known as the "Campbell Ditch". It was 28 miles long. Two miles from its head this ditch crossed a tributary of Wolf creek known as French ravine and no water carried beyond French ravine in said ditch ever did, now does or can return to Wolf creek or Bear river above the land of plaintiff.

Beginning in 1862 two thousand inches of water was carried by said ditch in the winter time each year and not returned to either the creek or the river, being used in gravel mines at Smartsville. A small quantity has been and still is distributed in such manner that a portion of it has been returned to the