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necessary allegations to connect said parties defendant with the cause of action, and gets judgment against all of the defendants by default without having served a copy of the order, or a copy of the summons, or complaint, and without further notice to the defendants, the proceedings and judgment should be set aside, with costs. The record of the judgment, in such a case, presents the anomaly of a suit commenced against one defendant, a complaint against the same defendant, and then a final judgment against three persons who are strangers to the pleadings, their names appearing for the first time in the judge ment: Akin v. Albany etc. R. R. Co., 14 How. Pr. 337. When new pirties are made, both parties shonld have liberty, if they desire it, to amend and modily their pleadings, so as to exhibit the case as they may respectively desire to present it: Dabney v. Preston, 25 Gra t. 88, 813. An order creating a judgment against a man who has never been sned is void. Thus, if, after a judgment of mortgage foreciosure and sale, the name of a person as receiver of a party defendant to the action is ordered to be inserted in the summons and complaint, lis pendens, judgment, notice of sale, and all papers and proce lings nunc pro tunc, as of the date of the several papers, the order is veid and should be reversed. The receiver should have been made a party defendant by serving a supplemental summons upon him. Besides this, the very object of a lis pendens might be destroyed if the name of a defendant could be inserted nunc pro tunc. If a new party is brought in, a new lis pendens should be filed: Voight v. Schenck, 54 Iun, 518.
An ex parte order making a new party a defendant and directing him to appear and answer, where the complaint and summons have not been amended, is erroneous, and will be reversel, especially where the complaint states no cause of action or ground of reliei against him: Penfield v. Wheeler, 27 Minn. 353. The original defendants are entitied to potice of a motion to add a new party defendant, but it is unnecessary to give notice of such motion to the new party: Young v. Rollins, 90 N. C. 134. If new parties plaintiff are added, a failure to actually insert their names in the papers of the case is only a technical omission which is, after verdict, cured by the sta ute of amendments and jeofails: Lockwood v. Doane, 107 Ill. 235; Aylesworth v. Brown, 31 Ind. 270. If a plaintiff commences his action against a corporation, and it is served with summons as such, when no such corporation exists, and, after the statute of limitations has fully run, he amends his petition so as to bring in new parties as partners and defendants, the new parties no brought in may successfully rely upon the statute of limitations as a defense: Leatherman v. Times Co., 88 Kv. 291; 21 Am. St. Rep. 342.
SUBSTITUTION-REVIVOR-EXECUTORS AND ADMINISTRA. TORS.- When a party of record dies pending the action, his representative is not thereby made a party, nor does he become affected by any proceedings in the suit, until he is brought into court and made a party in due form: Judson v. Love, 35 Cal. 463, 469; Ex parte Tinkum, 54 Cal. 201, 203; but, in some jurisdictions, it is the well-settled practice, in case of the death oi a party to an action, to allow the substitution of his legal representatives to be made, upon suggestion of the death, and on an ex parte motion showing the appointment and qualification of the executor or administrator of the estate of the deceased party: Campbell v. West, 93 Cal. 653, 656; Judson v. Love, 35 Cal. 463.
Upon the death of the plaintiff, his executor may be substituted as plaintiff upon an ex parte suggestion and proof of death, and nu notice thereof to defendants in default is necessary. Such substitution does not require an amendment of the complaint, though all subsequent proceedings should be in the name of the substituted party; and a judge ment in favor of the substituted executor is supported by the order of substitution, without any amendment of the complaint, or any service of the amendment upon any of the defendants: Kittle v. Bellegarde, 86 Cal. 556; Tavlor v. 'Western Pac. R. R. Co., 45 Cal. 323; Thorpe v. Starr, 17' III. 199.
Where an action is allowed to be continued against the representatives or successors in interest of a deceased defendant, service of the order of continuance and substitution on the new parties, with a nutice to appear, is sufficient to give the court jurisdiction over them; but the service of such order and notice is indispensable to the validity of a juilgment, so far as it affects such new parties: McCreery v. Everding, 44 Cal. 281; Judson v. Love, 35 Cal. 463, 468. When such order and notice are served, it has been held that a summons is unnecessary: Lyles v. Haskell, 35 S. C. 391. All that is required for the cause to proceedt, where one of several defendants dies pending the action, is to obtain, within the statutory time, the order for a continuance: Gordon v. Sterling, 13 How. Pr. 405. When the order is obtained within such time, a supplemental complaint and summons are unnecessary : Gordon v. Sterling, 13 How. Pr. 405. If obtained after that time, a supplemental complaint and summons are necessary: Coon v. Knapp, 13 How, Pr. 175.
Unless the statute makes some provision for bringing in the repre. Bentatives of a deceased defendant, resort must be had to a supplemental summons and complaint: Mackay v. Duryea, 22 Abb. N. C. 284. So, if a defendant die before service of citation upon him, it is necessary that his administrator be served with a citation and copy of the petition. It is error to render judgment upon service of scire facias, only, in such a case: Lyendecker v. Martin, 38 Tex. 287. A personal representative, as well as any other necessary party, may be brought before the court by an amended pleading: Greer v. Powell, 1 Bush, 489, 496. If the record shows the death oi a defendant and the substitution of his executors or administrators, but does not show that the substitution of the latter was made at their instance, or by their authority, or after the proper service of a scire facias or rule upon them, the judgment will be reversed: Hiil v. Truby, 117 Pa. St. 320. Where summons is being served by publication upon nonresident defendants, under a statute requiring a publication once in each of six successive weeks, and the plaintiff dies after four weeks' publication, but the publication is thereafter continued to the termination of the six weeks directed by the order of publication, after which the action is continued, pursuant to the order of the court, in the name of the executrix of the deceased plaintiff, without further publication or appearance on the part of the defendant, there is no ef. fectual service of the summons, and the court acquires no jurisdiction to render a judgment in the action. The publication should have been commenced de novo after the substitution, and continued for the requisite six weeks : Reilly v. Hart, 130 N. Y. 625; 27 Am. St. Rep. 540. A judgment rendered in the lower court after the death of the original party plaintiff or defendant, can only be regarded on appeal as unajthorized and void, when the transcript fails to show that the legal repe resentative of the deceased party was made a party in the court below: Clayton v. Preston, 54 Tex. 418. By the rules of the supreme court of the United States, if either party, in real or personal actions, dies, pending a writ of error, his representatives may voluntarily become parties, or may be compelled to become parties, in the manner prescribed by such rules : Green v. Watkins, 6 Wheat. 260.
Moss v. Rose.
(27 OREGON, 595.) WATERS-IRRIGATING DITCH-OOTENANCY.-If persons divert water from a stream, for the urposes of irrigation, by means of a ditch, under an agreement that each shall have his share of the water, they are tenants in common of the ditch and of the right of appropriation, and a continuous use of the water by one of the parties must be presumed to be in maintenance of the rights of all the cotenants.
WATERS-IRRIGATING DITCH-ABANDONMENT.-Though one of the cotenants of an irrigating ditch and of the right of appropriation of water has failed for seven years to put his share of the water diverted to some beneficial use, this does not establish an intention, on liis part, to abandon his right, where the evidence shows that, from the time of the appropriation and diversion, he has diligently improved his land, and added materially each year to the area in cultivation, though he has irrigated the tract from other and more convenient sources.
COTENANCY-IRRIGATING DITCH-REPAIRS.-If tenants in common of an irrigating ditch neglect to keep it in repair, one of them has no right to stop up the ditch, though it causes an overflow 0:1 his land. All are equally bound to repair, and the injured cotenant may protect himself by completing the necessary repairs and holding his cotenants liable for their share of the expense.
Suit to enjoin the defendant, Rose, from obstructing the flow of water in a ditch constructed across his land. The defendant, in November, 1881, settled on an arid tract of public land. Prior to that time, the plaintiffs, Arthur J. and Alvin S. Moss, had settled on adjoining tracts. The lands were afterward surveyed and patents issued to each of three parties. The lands were in Malheur county, Oregon. The waters of Carter creek run, in a well-defined channel, through the western portion of the defendant's land, in a northerly direction, and those of Sucker creek, entering the defendant's land at the eastern border, run in a northwesterly direction, uniting on Arthur J. Moss' land near its southern boundary. In 1883, the plaintiffs, the defendant, and one Thomas Waite commenced a ditch at the west side of Carter crcek, near the south boundary of defendant's land, and jointly constructed it for a distance of about a quarter of a mile. The plaintiffs then built it to their lands, and conducted water therein, which they used continuously, in irrigating their lands, except when prevented from doing so by the defendant. In 1892, the defendant prohibited the plaintiffs from entering upon his poremises, or appropriating the water of Carter creek. The deiendant removed the headgate, filled the ditch, and obstructed the flow of water to the plaintiffs' premises. Hence this suit. The plaintiffs alleged that the ditch was constructed and owned by the parties as tenants in common, but that the defendant had abandoned his interest. They prayed that the defendant might be restrained from intermeddling with the ditch, or obstructing the flow of water in it. After denying the material allegations of the complaint, the defendant alleged that he was the prior appropriator of the waters of Carter creek, at a point about one mile above his land; that the plaintiffs' diversion and appropriation had at all times been by his permission, which he had revoked; and that he had filled the ditch because the plaintiffs failed to keep it in repair. The truth of the new matter set up by the answer was put in issue by a reply, and a referee took the evidence,
a from which the court found that the ditch had been constructed by the parties as tenants in common; that by reason of the defendant's failure to appropriate the water within a reasonable time, he had abandoned his right to its use; and that, by reason of such abandonment, the plaintiffs had become entitled to the exclusive use of the water. The plaintiffs obtained a decree as prayed for, with fifty dollars damages, and the costs and disbursements of the suit. The defendant appealed.
Olmstead & Courtney, for the appellant.
697 MOORE, J. 1. A careful examination of the evidence leads us to the conclusion that the court very properly found that there was an agreement, by the terms of which the plaintiffs, in consideration of their labor and expense in constructing the ditch, should have the right to appropriate one-half the water conducted therein, for the purpose of irrigating their lands; and hence the principal question to be considered is, whether the defendant, by not appropriating the water till 1890, had abandoned all his interests therein. The ditch having been constructed under an agreement between the parties that each should be entitled to appropriate his share of the waters of Carter creek, rendered the parties tenants in common of the ditch and right of appropriation, and the defendant's property rights must 598 be governed by the rules of law regulating such: Black’s Pomeroy on Water Rights, sec. 63; Freeman on Cotenancy and Partition, sec. 88. Had the plaintiffs abandoned that ditch, and made a subsequent appropriation through another, there might have been just reason for considering the effect of the defendant's delay in applying the water so diverted to some beneficial purpose; but the continued use of the water by the plaintiffs is presumed to be in maintenance of the rights of the defendant, for whom they held it as tenants in common: Gunter v. Laffan, 7 Cal. 588. And even if their possession was adverse, it has not continued a sufficient length of time to entitle them to any rights by prescription.
2. Examining the evidence from which an inference of the defondant's intention to abandon the appropriation is to be deduced, we find that in the spring of 1882 he dug a short ditch about one mile above his land, and built a dam in Carter creek, by means of which he turned a portion of the waters of that stream into a slough, from which he constructed a ditch and recaptured the water thus diverted. With this, and water diverted from Sucker creek, which he tapped by another ditch, he was enabled to irrigate that portion of his land lying east of Carter creek, and, after Having reduced the same to cultivation, he, in 1890, commenced to improve the tract on the west side of said creek. It is maniiest that from the time the defendant appropriated the water, until 1890, he had exercised due and reasonable diligence in reducing his land lying east of Carter creek to cultivation. IIe had in that time changed an arid sage brush plain of about one huncred acres into a productive farm, and, having succeeded in providing sufficient water for the irrigation of his land lying east of the creek, he immediately turned his attention to the improvement of 599 that on the west. Having, in 1883, made a diversion of the waters of Carter creek by the ditch in question, the defendant was required to use due and reasonable diligence in appropriating the waters so diverted to some beneficial use. But having made two diversions—one from Sucker and the other from Carter creek-it could not be expected that he must needs abandon the former in order to protect his interest in the latter, nor that he should alternately appropriate the waters of each stream, and make his improvements on both sides of Carter creek, in order to maintain his original rights. Reasonable diligence only was required, and the evidence shows that the defendant faithfully prosecuted the improvement of his lands, adding each year to the area in cultivation. Upon these facts, we cannot say his intention to abandon the use of the waters in Carter creek has been established by that degree of proof required in such cases: Black's Pomeroy on Water Rights, sec. 97; and, as a matter of law, we conclude that the plaintiffs, as tenants in common, held the possession for, and maintained the rights of, the defendant: Mining Co. v. Tayler, 100 U. S. 37; Clymer v. Dawkins, 3 How. 674.
3. The evidence also shows that the plaintiffs neglected to repair the ditch, in consequence of which it became obstructed, causing an overflow of water on the defendant's land, which washed out quite a gully therein. This, no doubt, precipitated the difficulty, and caused the defendant to take out the headgate and fill the ditch, thereby preventing the water from flowing to