pleton, agreeing to pay him therefor the sum of $100. After the entire job was completed respondent gave to Stapleton a written order on appellant requesting the latter to pay Stapleton such sum of $100 out of the contract price then due respondent, but appellant refused to pay such order on presentation thereof. Stapleton filed in the recorder's office a claim of lien against the property for the amount due him from respondent; and, after appellant's refusal to pay said order, commenced an action to foreclose the lien, in which suit Clancy and Plover, the parties here, were made defendants; Plover, the owner, contested the case, but Clancy made default. Stapleton recovered judgment in that action for said sum of $100, together with $3.25, cost of recording his claim of lien, $50 attorney's fees, and $75.50, costs of suit-in all $228.75, to satisfy which Plover's premises were ordered to be sold; Plover then paid the amount of that judgment, and claimed credit in the present action for the whole of the sum so paid. But the court below allowed him credit for only $100, the amount of Stapleton's original demand, and rendered judgment in respondent's favor for $258, together with costs, and $40 for attorney's fees. Plover appeals from the judgment and an order denying a motion for a new trial.

1. It has been established by the decisions of this court that no allegation need be inserted in a complaint for the foreclosure of a mechanic's lien relative to the claim of the plaintiff for attorney's fees; that an allegation on that subject if made does not bind even the party making it. (Mulcahy v. Buckley, 100 Cal. 490; Pacific Mut. Life Ins. Co. v. Fisher, 106 Cal. 224.) Therefore, the issue made by the pleadings here on that question was immaterial, and the failure of the court to find upon the same was not error.

It is said that there was no evidence before the court as to the value of respondent's counsel fee. Since the above-cited cases determine that the attorney's fee is to be fixed by the court, irrespective of any averment in the complaint, and that such averment is immaterial, it

is not perceived why the plaintiff must necessarily prove what he need not allege; the court is not bound by testimony touching the value of attorneys' fees in suits of this nature; the limitation on its action being that it shall not abuse the discretion committed to it by the statute (Code Civ. Proc., sec. 1195); we think, therefore, that the failure of the plaintiff to produce evidence on that question does not affect the validity of the judgment awarding such fees. (See the opinion of Harrison, J., in Watson v. Sutro, 103 Cal. 172; Rapp v. Spring Valley Gold Co., 74 Cal. 532.) No doubt such evidence is admissible and may properly be considered by the court, but its absence in the record on appeal is not a circumstance requiring a reversal, unless it should appear from an inspection of the record, and without evidence to sustain it, that the fee fixed by the court is unreasonable; which is not claimed in this instance.

2. It was the duty of the respondent to protect the appellant's property against any lien preferred by subcontractors, laborers, or materialmen employed by him. (Code Civ. Proc., sec. 1193.) Under the same section the owner was entitled to deduct from any amount due to respondent the amount of the Stapleton judgment and costs; and this, of course, includes the attorney's fees recovered by Stapleton. Respondent could have prevented the accumulation of such expenses by the simple expedient of paying the sum due to Stapleton; it was his debt, and not appellant's. (Covell v. Washburn, 91 Cal. 560.)

It does not affect the case that an order was given upon appellant for the amount of Stapleton's claim before that action was begun, and that he refused payment of the order. The respondent could not split his demand, and by assignment of a portion thereof impose upon appellant without his consent the legal obligation of paying the assignee. (Thomas v. Rock Island G. & S. M. Co., 54 Cal. 578; Grain v. Aldrich, 38 Cal. 514; 99 Am. Dec. 423.) Respondent refers us to Adams v. Burbank, 103 Cal. 646. But that case differed from this in

the important feature that there the owner had promised to pay the contractor's orders and wrongfully violated his agreement, while here there was no such promise.

It results that the judgment must be modified as of the date of its entry by striking therefrom the sum of $128.75, the excess of Stapleton's judgment paid by appellant above the sum allowed as a credit to appellant in this action, and, as so modified, the judgment and the order denying a new trial should be affirmed.

VANCLIEF, C., and BELCHER, C., concurred.

For the reasons given in the foregoing opinion the judgment is modified by striking therefrom the sum of $128.75, as of the date of entry thereof, and as so modified the judgment and the order denying a new trial are affirmed.

MCFARLAND, J., TEMPLE, J., HENSHAW, J.

[No. 15795. Department One.-May 24, 1895.]

EZEKIEL M. HECKMAN, RESPONDENT, v. JOHN A. SWETT ET AL., APPELLANTS.

FISHERIES-EEL RIVER-CHANGE IN CHANNEL-LOW-WATER MARK— EXCLUSIVE RIGHT TO FISH FROM ISLAND INJUNCTION.-Under the act of 1859, which gives to the owners of lands fronting on Eel river the exclusive right and privilege of casting, hauling, and landing seines and nets on their own water-front, and provides that all "bars and the bed of said river lying between the lines of the official survey and extreme low-water mark snall be deemed and held to be the water-front of the landowner whose lines border on said river, or ran nearest thereto," where it appears that the channel of the river has been changed, so that at low tide the bed of the old channel is dry in places between an island and the plaintiff's land, and the new channel is on the south side of the island, leaving the low-water mark on that side of the island, and leaving the island and the old channel of the river above low-water mark, the owner of the land bordering on the south side of the river is entitled to the exclusive right of casting nets and seines for salmon on the south side of the island in front of his lands, and may enjoin the owners of the land on the north side of the river from interfering therewith or making claim thereto.

ID.-RIGHT OF STATE TO REGULATE FISHERIES-The state, by virtue of its sovereignty, has authority to regulate fisheries within its borders, and may prescribe the places as well as the times in which fish may be taken, and may make exclusive grants of fisheries in designated waters so far as the same do not impair private rights already vested. ID.-ACT REGULATING SALMON FISHERIES NOT REPEALED BY PENAL CODE. The provisions of the act of 1859, to regulate salmon fisheries on Eel river, are not repealed by sections 634 to 636 of the Penal Code; but those sections are merely intended to regulate the times and mode of catching salmon; and within the times and mode thus prescribed, the owners of the land fronting on Eel river may still exercise the right of catching salmon conferred upon them by the act of 1859.

ID. RIGHT LIMITED TO SALMON FISHERIES-MODIFICATION OF JUDGMENT. The act of 1859 purports to confer a right of action in favor of owners of lands fronting on Eel river, only against those he shall cast, haul, or land any seine or net in Eel river for the purpose of catching salmon; and a judgment giving to a plaintiff the exclusive right of casting nets in Eel river, irrespective the purpose for which they are cast, and enjoining the defendants from casting any nets in the waters fronting upon the plaintiff's land, is broader than is justified by the statute, and should be limited to casting nets for the purpose of catching salmon.

APPEAL from a judgment of the Superior Court of Humboldt County.

The facts are stated in the opinion.

E. W. Wilson, for Appellants.

An action to quiet the title to the fishery in question cannot be maintained because the plaintiff has neither title nor possession, and the property in question is neither real estate nor appurtenant to any real estate owned by the plaintiff. (Heckman v. Swett, 99 Cal. 309; Winter v. McMillan, 87 Cal. 256; 22 Am. St. Rep. 243; Martin v. Lloyd, 94 Cal. 195; Standart v. Round Valley W. Co., 77 Cal. 399.) The action should have. been trespass, if any thing. (Stat. 1889, p. 298; Reed v. Omnibus R. R. Co., 33 Cal. 212.) The act entitled "An act to regulate salmon fisheries on Eel river, in Humboldt county," approved April 18, 1859 (Stats. 1859, p. 298), has been repealed; as it is in conflict with the provisions of section 634 of the Penal Code. (In re Yick Wo, 68 Cal. 304; 58 Am. Rep. 12; Capron v. Hitchcock, 98 Cal. 427.)

The act is unconsti

tutional and void, as it presumes to grant to private parties the exclusive right and privilege of casting seines and nets in Eel river, a navigable stream in which the tide ebbs and flows, for catching salmon. The right to fish, as an incorporeal hereditament, is subject to the general rules which govern the enjoyment of real property. (Smith v. Cooley, 65 Cal. 48.) Any interference is an injury to the right. (Learned v. Castle, 78 Cal. 461.) It is not necessary that the adverse claim should be of any particular character. (Castro v. Barry, 79 Cal. 443.) The right to the exclusive exercise of the privilege is sufficient. (Jacob v. Lorenz, 98 Cal. 332.) The act has not been repealed either by express statute or by implication. The grant was a public grant, which could not be revoked excepting for special cause and by due process of law. (Duncan v. Beard, 2 Nott & McC. 400; Nichols v. Hubbard, 5 Rich. 267; Huntington v. Asher, 96 N. Y. 604; 48 Am. Rep. 652; Hill v. Lord, 48 Me. 83; Huff v. McCauley, 53 Pa. St. 206; 91 Am. Dec. 203.) This grant could not be impaired by any subsequent act of the legislature, and the sections of the Penal Code cited by appellant would not affect plaintiff's right. (Montgomery v. Kasson, 16 Cal. 189; Grogan v. San Francisco, 18 Cal. 590; Jemison v. Planters' etc. Bank, 23 Ala. 168; Trustees v. Bradbury, 11 Me. 118; 26 Am. Dec. 515.) The plaintiff had a vested right which could not be impaired by subsequent legislation. (Cooley's Constitutional Limitations, 358; Smith v. Maryland, 18 How. 74; McCready v. Virginia, 94 U. S. 391; Illinois Cent. R. R. Co. v. Illinois, 146 U. S. 452; Stockton v. Baltimore etc. R. R. Co., 32 Fed. Rep. 9, 19, 20.)

J. W. Turner, for Respondent.

An action to quiet title was the proper action to bring. (Mayor of York v. Pilkington, 2 Atk. 302; 6 Waite's Actions and Defenses, 282.) In this state an action to quiet an adverse claim to a right has been recognized. (Moore v. Clear Lake etc. Co., 68 Cal. 150; Lux v. Haggin,