trial was right, unless there is some other reason which shows that the plaintiff had no case. It is argued for the defendant that there are such reasons; and we proceed to consider the positions taken in this regard. 2. It is said that the road was a private road, under section 2692 of the Political Code, providing for "private or by-roads," and that land cannot be condemned for such a purpose. This point is disposed of by the case of Sherman v. Buick, 32 Cal. 241, in which it was held that the term "private road" was used merely to designate a particular kind of public road, and that, notwithstanding the somewhat inaccurate language, the use was public. It is true that the decision of this point was not strictly necessary to the disposition of the appeal. But it arose in the case, and was the main question discussed by counsel. The decision has stood for over twenty years, and as the statute has been in force during that time, it is probable that many such roads have been opened under it. Under these circumstances the decision should be followed, even if its soundness be questionable, which, however, we are not prepared to says is the case. 3. It is contended that the suit was not properly brought in the name of the county, but should have. been in the name of the people of the state. Counties, however, are "bodies corporate and politic" (County Government Act, sec. 1), and may sue and be sued (sec. 4); and this particular suit was a county matter, it being expressly provided that the suit shall be brought under the direction of the board of supervisors. (PolCode, sec. 2690; compare Kimball v. Alameda County, 46 Cal. 19.) The practice is to bring such suits in the name of the county (see Humboldt County v. Dinsmore, 75 Cal. 604; Tehama County v. Bryan, 68 Cal. 57; Butte County v. Boydston, 64 Cal. 110); and we have no doubt of the correctness of the practice. 4. It is argued that the action was not properly brought against the executrix. was the proper party. But we think that the executrix Procedure provides that "actions for the recovery of The word "recovery," as used in this section, does not imply that the plaintiff had at some previous time owned or been in the possession of the property. If, for example, the owner conveys to another land which is then in the possession of a trespasser, there can be no doubt that the grantee may maintain ejectment against such trespasser, or that it would be correct to describe such action as for the "recovery" of possession, although the plaintiff never was in possession. So it is usual to speak of an action for the "recovery" of money under a contract, when, as a matter of course, the plaintiff was never in possession of the money. Taking the word in this sense, we think that proceedings for the condemnation of land fall within the provision of the section. And this is the construction to which other considerations lead. The money awarded as compensation is to be paid to the defendant in the proceeding. Hence the proceeding should be against the person entitled to receive the money. And as it is clearly a part of the estate, and may be required to pay creditors, the executrix is manifestly the person entitled to receive it. 5. It is said that "the cause of action does not survive." As the plaintiff is not dead, the expression is perhaps not entirely accurate. If it means that the ac tion was not properly brought against the executrix, we have already disposed of the point. If it means that apon the death of the owner the proceedings against his interest had to be commenced all over again, we think that the point is manifestly untenable. 6. It is urged that inasmuch as the order of the board was that suit should be brought against "V. Cushing," the fact that he had died twenty days before the order was made rendered the whole proceedings void. We do not think, however, that section 2690 of the Political Code makes the board of supervisors the judge of the question as to who are the proper parties to the action, or requires it to determine what persons are to be joined as defendants. All that is essential is, that the board should give its sanction to the commencement of the suit. And we think there can be no doubt that an order which merely stated in general terms that suit should be brought against the non-consenting landowners would be sufficient. The designation of such land-owners by name might be proper as matter of description. But as such designation is not essential, we do not think that a mistake in the name is of vital importance, provided it can be gathered from the proceedings what interest was to be acquired. Now, in the present case, Cushing's name appeared throughout the proceedings before the board as the owner in question. The report of the viewers states that the road described takes 4.13 acres of the lands of V. Cushing, and specified quantities of the land of three other designated persons; that such other persons consented to the opening of the road, but that Cushing did not consent, and that the amount assessed as compensation to him was $20.65. Cushing was notified of the hearing of this report, and appeared and contested it; but it was confirmed, and an order was made that "the sum of $20.65 as damages be and is hereby awarded to Volney Cushing, the non-consenting land-owner, whose land is crossed by said road, and that LXXXIII. CAL.-33 upon payment to said Cushing of said sum," the road should be opened for travel, etc. The money was tendered to Cushing, but was refused by him, and he subsequently died. Shortly after his death, the order that suit should be commenced against him was made. This order should be read in connection with the prior proceedings; and when so read, the interest to be acquired sufficiently appears. And we think that upon any ra tional construction, the order must be held to authorize the suit against his representative. 7. It is said that the report of the viewers is insufficient in that it makes no estimate of the amount of damages to be awarded to the owner. And the learned counsel seems to argue that the damage resulting from the taking is a different thing from the value of the land taken, and that the report of the viewers should state the items separately. It is quite true that the Code of Civil Procedure requires that this distinction should be drawn by the court in its findings. (Sec. 1248.) But that provision has nothing to do with the proceedings before the board of supervisors. They are regulated by the Political Code, which provides that the report of the viewers shall contain, among other things, "the estimate of the damage to the owner." (Sec. 2686.) It makes no distinction between the items of damage. For example, it says nothing about the value of the land to be taken. But as this is an important element of the damage, it must be included in the phrase quoted. It seems clear, therefore, that all that was required of the viewers was to report a lump sum, which, in their judgment, was the proper amount to be paid to the owner. If this be the true construction, we think that the report should be held sufficient. We do not think that the report of viewers to lay out a county road, to a body like the board of supervisors, should be construed with any great degree of strictness. And it is to be remembered that such report is not binding upon the owner, who may wait until he is brought into court, where he may prove whatever damage he may have sustained. There is nothing in the respondent's point that the answer should have been verified. The plaintiff was neither the state "nor an officer of the state in his official capacity." (Compare San Francisco v. Itsell, 80 Cal. 60) We therefore advise that the order appealed from be affirmed. VANCLIFF, C., and BELCHER, C. C., concurred. The COURT.-For the reasons given in the foregoing opinion, the order appealed from is affirmed. [No. 13173. In Bank.-April 1, 1890.] E. MCDANIEL, APPELLANT, v. M. CUMMINGS, RE SPONDENT. EASEMENTS-CONSTRUCTION OF CODE.-Section 801 of the Civil Code merely enumerates and defines the different kinds of easements which may be appurtenant to land; and does not prescribe or regulate the manner of acquiring them. ID.-CREATION OF EASEMENTS-CONTRACT-COMMON LAW.-Ordinarily an easement is created by contract or grant, express or implied; but with respect to the flow of surface water, the question of easement or no easement depends upon the law defining the mutual rights and obligations of the owners of adjoining lands, which are regulated in this state by the common law. ID.-WATER RIGHTS-FLOW OF SURFACE WATER-STARE DECISISFLOOD WATER DISTINGUISHED FROM SURFACE WATER.-The case of Ogburn v. Connor, 46 Cal. 346, is affirmed on the principle of stare decisis, to the effect that the owner of an upper tract has an easement to have the surface water which has been accustomed by a natural flow to pass off from his land, over the land below, flow over such land, without obstruction; but the rule thus affirmed is confined to surface water having its sources in springs or descent from the clouds in the form of rain or snow, which the owner of the higher land cannot keep out by any practicable means, and does not apply to flood waters, which the owner of the higher land may restrain by the same means employed by his neighbor. ID. INJUNCTION AGAINST LEVEE-OVERFLOW OF SACRAMENTO RIVER.— A proprietor of higher land bordering on the Sacramento River can |