sued upon a judgment against another person. A disturbance of his property by color of such proceedings renders all parties participating in such act amenable to an action at law. Herm. Ex'ns, 629. And the aid of a court of equity may be invoked in some instances to restrain a sale. 1 High, Inj. §§ 144, 187; Herm. Ex'ns, 610, 611. But in the language of Mr. Herman, it must be understood that the execution of final process concerns only the debtor and the creditor, the plaintiff and defendant, and they alone are interested in the regularity of the officer's proceedings. Strangers, if affected, have means provided by law for enforcing or protecting their rights. Herm. Ex'ns, supra. In the case of Cooper v. Gardner, 3 Adol. & E. 211, by inquisition taken under an eligit, it was stated that G., the defendant, was possessed of a term in lands as mortgagee. The term had been bequeathed by words upon which a question arose whether such term was vested in G. or in the executrix. The court refused to decide, on motion at the instance of the mortgagor or the executrix, whether G. had an interest of the nature described in the inquisition; Justice PATTESON, on the argument, remarking that this could be nothing more than the case of a sheriff seizing the goods of A., under an execution against B., and intimated that the court never proceeded summarily upon such a question as that. To the same purport is the case of Hewson v. Deygert, 8 Johns. 257. In the case of Myers v. Kelsey, 19 Johns. 197, a sheriff sold a house under one judgment, and afterwards seized the same house and advertised it for sale. The purchaser at the first sale moved that all further proceedings under the last-mentioned execution should be stayed. The court refused to decide on the rights of the parties in that summary way, and left the purchaser to his remedy by action. In Frink v. Morrison, 13 Abb. Pr. 80, a mortgagee was not permitted to move to set aside an execution against the mortgaged property on a judgment which was a lien when he took his mortgage, although the execution was irregularly issued. Also, opposed to the notion that a stranger to the suit can so move is the case of Hitchcock v. Roney, 17 Ill. 231. Upon this ground the refusal of the circuit court to interfere with the execution was correct. The writ of certiorari should be dismissed.

STATE (BAUMAN, Prosecutor) v. DISTRICT COURT OF THE CITY OF HOBOKEN et al.

(Supreme Court of New Jersey. June Term, 1887.)

1. APPEAL REQUISITES-TIME OF TAKING.

After entry of judgment in a district court, defendant filed a motion for a new trial, which was overruled by the court. He then, more than 10 days having elapsed since the judgment, but less than 10 since the overruling of the motion, entered an appeal. Held, that such appeal was not seasonably taken, under the statute of New Jersey, which requires an appellant from a district court to give notice of his appeal within 10 days after judgment.

2. MANDAMUS-TO COMPEL ISSUANCE OF EXECUTION-INEFFECTUAL APPEAL.

Where a district court refuses, after an ineffectual appeal has been taken from its judgment, to issue execution thereon, upon application to this court a writ of mandamus will issue compelling it to perform that duty.

Application for mandamus.

An alternative writ of mandamus was allowed, directing the defendants, the district court of Hoboken, and Gustav Streng, clerk of said court, to issue an execution upon a judgment in that court, or show cause for the refusal. The writ recited that the judgment was entered against John and Angelo Podesta, on April 13, 1886, that execution was issued on April 14th, which was unsatisfied, but nevertheless the said court and said clerk refuse to issue an alias writ of execution. The return set out that on the 13th of April a verdict was rendered in the said Hoboken district court, in the caused referred to; that on the 16th day of April a motion was made for a new trial on behalf of the defendants, on the ground that the verdict was contrary to the law and evidence;

that the court set down the 24th day of April for the argument of said motion, and on the 27th day of April the court refused to grant a new trial; that on the 29th day of April defendants gave notice of appeal to the plaintiff, and thereupon entered into bond to the plaintiff for the costs, etc., which bond was filed and approved by the judge on the 3d day of May. To this return a demurrer was filed.

Argued at February term, 1887, before BEASLEY, C. J., and Justices DEPUE, SCUDDER, and REED.

Joseph A. McCreery, for relator.

REED, J. The counsel for the relator insists that no appeal was taken from the district court, and therefore there is a clear duty resting upon that court to issue an alias execution, which duty it has refused to perform. The contention is that from the face of the return it appears that the attempt of the defendant to take an appeal was ineffectual because he had previously permitted the period within which he could have taken such action to expire. The provision for taking appeals from district courts is found in section 171 (Revision, p. 1330) of the district court act. The following is the language: "That if either party in any such action or proceeding shall be dissatisfied with the determination or direction of said court in point of law, or upon the admission or rejection of evidence, such party may appeal from the same to the court of common pleas in and for the county wherein said district court is held: provided, that said party shall, within ten days after such determination or direction, give notice of such appeal to the other party." The question is presented here whether, under this statutory provision for an appeal, the return shows such a course of conduct in the court below that no appeal could have been taken. The return discloses only the facts that more than 10 days elapsed after the entering of judgment below before the notice of appeal was given, but that a less period than 10 days intervened between the refusal to grant a new trial and the notice. If the notice of appeal had to be given within 10 days after the entery of judgment, then no appeal was taken, and the district court had no right to withhold execution. This being so, then upon a demand made to the court to issue such writ, and its refusal to do so, a writ of mandamus will go to the court compelling it to perform this duty. The failure of the defendant to give the notice within the statutory period stripped the district court of all power to allow or recognize an appeal. There is no dispute as to the fact that no notice was given within the 10 days following the entry of the judgment. At the expiration of that period, no power under any condition of fact could exist to justify the taking of an appeal. The law is well settled in this state that there is no other adequate remedy for a refusal to issue an execution, where such refusal is based upon the existence of an appeal which suspends the right of the subordinate tribunal to issue the writ, than mandamus. Laird v. Abrahams, 15 N. J. Law, 22. And where it appears that there is no power to allow the appeal, the writ of mandamus will be allowed. Terhune v. Barcalow, 11 N. J. Law, 38. As already remarked, if it appears to be the law that the defendant was bound by the statute to give his notice of appeal within 10 days from the judgment, the condition of affairs would exist in this case which entitles the plaintiff to the writ of mandamus. I think that the date of the entry of judgment is the point of time from which the period given for appeal commences to run. It may be that where the court, subsequently to the entry of judgment, grants a rule to show cause why a new trial should not be allowed, the judgment would be considered suspended during the pendency of the rule. Upon this point no opinion is expressed. Here there was no rule to show cause allowed. The defendant, by permitting the statutory period to expire without perfecting his appeal, took the option of resting his right to a review in the trial court alone. There should be judgment entered for the demurrant.

ODELL v. NEW YORK, O. & W. RY. Co.

(Court of Errors and Appeals of New Jersey. June Term, 1887.)

Error to supreme court.

Thomas J. Kennedy, for plaintiff in error. James B. Vredenburgh, for defendant in error.

PER CURIAM. The judgment below in this case should be affirmed. Unan-imously affirmed.

NORTH HUDSON COUNTY R. Co. v. VANDERBECK.1

(Court of Errors and Appeals of New Jersey. June Term, 1887.) LIMITATION OF ACTIONS-ADVERSE POSSESSION-BY WIDOW, AS AGAINST HEIR.

In ejectment, the evidence showed that the deceased wife of the defendant in possession, having received from a former husband a dower interest in the land in dispute, obtained from the legislature a grant in fee of all the interest of the state in such land, after representing that her first husband had left no heirs capable of inheriting. Held, that it was for the jury to determine whether the legislative grant gave to the widow such color of title as by lapse of time would make her possession adverse to an heir at law of the first husband, and whether the possession of her surviving husband, after her death, was under a claim as tenant by the curtesy to her, or otherwise adverse to the title of any heir at law. Colgan v. Pellens, 2 Atl. Rep. 633, followed."

Error to supreme court.

For statement of facts, see Colgan v. Pellens, 2 Atl. Rep. 633.

S. B. Ransom, for plaintiff in error. J. C. Besson, for defendant in error.. PER CURIAM. The judgment below in this case is affirmed, for the reasons stated by the supreme court.

NORTH HUDSON Co. R. Co. v. VANDERBECK.

(Court of Errors and Appeals of New Jersey. June Term, 1887.)

Error to supreme court.

J. C. & S. H. Besson, for plaintiffs in error. Joseph F. Randolph, for defendant in error.

PER CURIAM. The judgment of the court below in this case should be affirmed.

STEVENS v. KELLEY et al.s

(Supreme Judicial Court of Maine. January 25, 1888.) RIPARIAN RIGHTS-MILL-OWNERS-USE OF WATERS.

The owner of a mill-dam is obliged to vent the water for the use of mill-owners below, so that each shall have the natural flow of the stream, except so far as that flow is modified by the reasonable use of the water by the successive riparian proprietors, and, in the absence of malice, is not liable in damages to a riparian proprietor above, whose ice crop has been thereby destroyed.*

On motion and exceptions from supreme judicial court, Waldo county. Action on the case to recover damages sustained by the plaintiff in his icefield because of the alleged malicious acts of the defendant in drawing off the

'Affirming 2 Atl. Rep. 633.

'As to what constitutes adverse possession, see McLaughlin v. Del Re, (Cal.) 16 Pac. Rep. 881, and note. As to what constitutes color of title, see Hickman v. Link, (Mo.) 7 S. W. Rep. 12, and note.

'Reported by Leslie C. Cornish, Esq., of the Augusta bar.

'See note at end of case.

water through their mill-dam. The verdict was in favor of the defendants, and the plaintiff alleged exceptions, and filed a motion for new trial, on the ground that the verdict was against the law and the evidence.

W. P. Thompson and R. F. Dunton, for plaintiff. Wm. H. Fogler and True P. Pierce, for defendants.

PER CURIAM. Nothing herein is involved which is dependent upon or affected by the mill act. The gravamen of the plaintiff's complaint is that the defendants, during several of the six years next preceding the date of the writ, maliciously drew off the water through their dam, and thereby let his ice which formed on the mill-pond down on the mud, and destroyed it. The case presents an ancient mill-dam, though the mill on the dam has been idle for the past nine years, with three or more ancient mills below on the same stream, one of which belongs to two of the owners of the dam; all of them operated by water vented through the dam, and coursing along the natural channel; and the plaintiff's land flowed by the dam covered with ice in the winter season, which the plaintiff has more or less frequently harvested. So long as the dam rightfully stands, it is the bounden duty of its owners to vent the water thereof for the use of the mill-owners below, so that each shall have the natural flow of the stream, except so far as that flow is modified by the reasonable use of the water by the successive riparian proprietors. The jury have found that the defendants were guilty of no malicious intent, since they only vented such water as had been done for the long series of years during which the mills have existed. If the defendants had let less water from their dam, they would have been liable to the lower mill-owners for the injury caused by unlawful detention. We think, therefore, that the instruction was not prejudicial to the plaintiff, and that the verdict is neither against law nor the evidence. Stevens v. Kelley, 78 Me. 445, 6 Atl. Rep. 868; Davis v. Winslow, 51 Me. 290; Davis v. Getchell, 50 Me. 602; Gould v. Duck Co., 13 Gray, 442; Gould, Wat. § 218. Motion and exceptions overruled.

NOTE.

RIPARIAN RIGHTS-USE OF WATER. A riparian proprietor upon a natural stream should use the water in such a manner that every riparian proprietor further down the stream will have the use and enjoyment of it, substantially according to its natural flow, subject to such interruption as is necessary and unavoidable by the reasonable and proper use of the water in the stream above. Ware v. Allen, (Mass.) 5 N. E. Rep. 629. Every riparian proprietor has an equal right to the unimpeded flow, in its natural course, and to the reasonable use, of waters flowing in a natural stream over his land. What may be a reasonable use in any given case depends on the facts and circumstances of that case. Lux v. Haggin, (Cal.) 4 Pac. Rep. 919.

Each riparian owner has a right, within his own territory, to the use of the water as it flows, returning it to the channel of the stream for the use of others below. Mason v. Cotton, 4 Fed. Rep. 792.

A riparian proprietor is entitled to the reasonable use of running water for irrigation, but not to the exclusion or prejudice of other riparian proprietors. Priority of appropriation does not give an exclusive right to the water. Jones v. Adams, (Nev.) 6 Pac. Rep. 442.

It is said in Learned v. Tangeman, (Cal.) 4 Pac. Rep. 191, that, in an action between riparian proprietors, an instruction which in effect told the jury that the defendants were entitled to divert and use all the water of a stream, if necessary for the irrigation of their land, without regard to the wants or necessities of the other riparian proprietors, is erroneous, and ground for a reversal.

When water has a definite source, as a spring, and takes a definite channel, it is a watercourse; and no person through whose land it flows has a right to divert it from its natural channel, so as to cause injury to another land-owner. Pyle v. Richards, (Neb.) 22 N. W. Rep. 370. See Van Orsdal v. Railway Co., (Iowa,) 9 N. W. Rep. 379; Railway Co. v. Dyche, (Kan.) 1 Pac. Rep. 243.

The right of a riparian owner to the uninterrupted and full use of the water as it flows naturally past his land is not an absolute right, but a natural one, qualified and limited by the existence of like rights in others, and hence liable to be modified or abridged by the reasonable use of the stream by others. Roller-Mills v. Wright, (Minn.) 15 N. W. Rep. 167.

Diversion of water will not be restrained at suit of owner of land situated on the water-course, unless such diversion diminishes the quantity of water which would otherwise have flowed therein by a natural channel. Creighton v. Irrigation Co., (Cal.) 7 Pac. Rep. 658.

Unless the flow in a stream to the land of a riparian proprietor has been appreciably or perceptibly diminished, he is not entitled to an injunction against another for wrongfully diverting water from his stream. Moore v. Water-Works, (Cal.) 5 Pac. Rep. 494. The diversion of water from a stream, on the part of one who has conducted some water to it, will be restrained, at the suit of a riparian proprietor, unless the former shows that he has not diverted from the stream more water than he led to it. Wilcox v. Hausch, (Cal.) 3 Pac. Rep. 108.

The act of utilizing as a reservoir a natural depression which included the bed of a stream, or which was found at the source thereof, is not in and of itself unlawful; but he who attempts to appropriate water in this way must be careful to prejudice no rights of prior appropriators. Reservoir Co. v. People, (Colo.) 9 Pac. Rep. 794.

A railroad company is liable in damages for diverting the course of a stream. Van Orsdal v. Railway Co., (Iowa,) 9 N. W. Rep. 379.

Where a railroad company inserted a pipe in the back-water of a dam, and upon their own property, and pumped water therefrom, to supply their tanks, in such quantities as to seriously diminish the supply required by a lower riparian proprietor for the running of his paper-mill, it was held that the right of the railroad company was only to use the water so as not to sensibly diminish the stream to the riparian owner below. If the company requires more than its share, it must resort to the right of eminent domain. Railroad Co. v. Miller, (Pa.) 3 Atl. Rep. 780.

The diversion of a water-course, or a part of it, by an upper riparian proprietor for manufacturing purposes, without restoring to the channel the excess of water not actually consumed, is an unreasonable exercise of the right to use the water of a stream, which involves its substantial diminution and waste. Weiss v. Steele Co., (Or.) 11 Pac. Rep. 255.

Where there are several proprietors in the same stream, each has a right to a fair and reasonable participation in the use of the waters; and, when this right is violated by an unreasonable use, detention, or diversion of the water by one of them, an action will lie against him by the party injured. Instruction held proper. Woodin v. Wentworth, (Mich.) 23 N. W. Rep. 813.

The use of the water of a stream by a railway company for the purpose of operating its engines is not a use for natural or domestic purposes; and if, by such use, the flow of water to a mill is diminished, and the capacity of the water-power below is lessened, it must answer in damages to persons injured thereby; but not so in any other case. Anderson v. Railway Co., (Ky.) 5 S. W. Rep. 49.

STATE v. WYMAN.1

(Supreme Judicial Court of Maine. January 28, 1888.)

INTOXICATING LIQUORS-INDICTMENT-PRIOR CONVICTION.

In an indictment for a single sale of intoxicating liquors, an averment of prior conviction is sufficient if it is alleged that at a specified term of court the defendant was convicted "of selling a quantity of intoxicating liquors."

On exceptions from supreme judicial court, Waldo county.

Indictment for a single sale of intoxicating liquors under Rev. St. Me. c. 27, §§ 33, 34.

Orville D. Baker, Atty. Gen., and R. F. Dunton, Co. Atty., for the State. Wm. H. Fogler, for respondent.

HASKELL, J. The indictment charges a single sale of intoxicating liquor in apt terms contra formam statuti, and further avers that at a particular term of court the defendant was convicted "of selling a quantity of intoxicating liquor." Rev. St. c. 27, § 33, prohibits the sale of intoxicating liquor. Section 34, as amended by section 2, act 1885, c. 366, provides that whoever sells any intoxicating liquor in violation of this chapter, forfeits, etc., and on every subsequent conviction shall be punished by fine and imprisonment. The indictment charges a prior conviction of the same unlawful act charged in it; and is sufficient under Rev. St. c. 27, § 57. A record of conviction no more

'Reported by Leslie C. Cornish, Esq., of the Augusta bar.