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Fox, J. Judgment went for defendant on demarrer to the complaint. The only question on this appeal is, whether the complaint states facts sufficient to entitle the plaintiff to maintain the action. James and Mary W. Lansing were husband and wife. The premises described in the complaint were their community property, duly dedicated as a homestead. James Lansing died, when the premises became the Bole property of Mary W. Lansing by operation of law (Civ. Code, sec. 1265), and was protected as such to the survivor in the same manner as before it had been protected to the community by its homestead character: Estate of Ackerman, 80 Cal. 208; 13 Am. St. Rep. 116. The death of the husband did not in any manner alter the state or character of the homestead (Tyrrell v. Baldwin, 78 Cal. 470), but upon his death, the property immediately vested in the surviving wife: Mawson v. Mawson, 50 Cal. 539; Estate of Headen, 52 Cal. 295; Gagliardo v. Dumont, 54 Cal. 496; Herrold v. Reen, 58 Cal. 443. The property having thus vested and being thus protected, this plaintiff, on April 9, 1885, recovered a judgment against Mary W. Lansing for $5,238.75. September 30, 1885, he caused execution to be issued and levied upon the property, and duly returned with the levy indorsed thereon, and the whole to be duly entered and recorded in the execution-book, in the office of the county clerk.

It is claimed that, at the time of this levy, the value of the property was largely in excess of five thousand dollars, and tbat, as to the excess, this created a lien upon the property. But this claim is not tenable. Property impressed with the character of homestead, no matter what its value, is exempt from seizure and forced sale. There was no lien of the judgment, and the levy created no lien, but simply created a foundation for proceedings under the statute (Civ. Code, sece. 1245 et seq.) for the ascertainment of the value of the

property covered by the declaration of homestead, and the procurement of an order of court for the partition or sale thereof, and the application of the excess to the satisfaction of the judgment: Barrett v. Sims, 59 Cal. 618, 619; Lubbock v. McMann, 82 Cal. 230; 16 Am. St. Rep. 108.

In October, 1885, plaintiff commenced proceedings under the statute referred to, to have an appraisement of the property, and secure an order for partition or sale, and application of the excess to the satisfaction of his judgment; but these proceedings were never prosecuted beyond having appraisers appointed. They never qualified or acted, and no further proceedings were taken in that action. In October, 1887, Mary W. Lansing died, and the present defendant was appointed her administratrix, qualified as such, and entered upon the discharge of her duties as such, in the administration of the estate.

Early in 1889 this action was commenced, which is substantially a proceeding under the same statute (Civ. Code, secs. 1245 et seq.), for the appraisement and sale or partition of the property, and the application of the excess above five thouband dollars to the satisfaction of his judgment. No claim was presented to the administratrix, and plaintiff claims that he was not required to present any, but that, having a lien upon the property, he was entitled to proceed, under section 1505 of the Code of Civil Procedure, directly to sale, were it not for the homestead, but that, the homestead intervening, his only remedy was to proceed as in this action; and it being to enforce a lien, the law did not require the presentation of the claim to the administrator, he having waived in his complaint all claim against the estate for deficiency. But we have already seen that he had no lien. Even if he ever acquired one, either by judgment or levy, it expired before the institution of this proceeding: Bagley v. Ward, 37 Cal. 121; 99 Am. Dec. 256; Rogers v. Druffel, 46 Cal. 654. If the levy created a lien, it did not extend it beyond the lien of the judgmeit: Bagley v. Ward, 37 Cal. 121; 99 Am. Dec. 256; Rogers v. Druffel, 46 Cal. 654; Isaac v. Swift, 10 Cal. 81; 70 Am. Dec. 698. Plaintiff therefore had a judgment, without lien, and it was bis duty to present the same to the administratrix, in like manner with any other claim: Code Civ. Proc., sec. 1505. And even if his claim was in lien, and the property was a homestead, as he concedes it to have been, he was equally bound to present the claim for allowance against the estate: Code Civ. Proc., sec. 1475; Camp v. Grider, 62 Cal. 20. It follows that the complaint did not state facts sufficient to constitute a cause of action, and the judgment must be affirmed.

So ordered.

HOMESTEAD - COMMUNITY PROPERTY. The death of one of the spouscs in no manner alters the estate or character of the homestead in community property: In re Ackerman's Estate, 80 Cal. 208; 13 Am. St. Rep. 116; Bol. linger v. Manning, 79 Cal. 7; In the Matler of Burdick's Estate, 76 Cal. 639. But where the homestead was carved, not out of community property, but out of the separate estate of the wife, upon her death, intestate, leaving

more than one child, one third descends to the husband and two thirds in equal shares to the children: Beck v. Soward, 76 Cal. 527. If no homestead was declared in community property during the existence of the community, the community property will vest according to section 1402 of the Civil Code, subject, however, to its temporary use as a homestead under the order of the probate court, which may set it apart for that purpose: In re Gilmore, 81 Cal. 240; In re Armstrong, 80 Cal. 71. When the law under which a homestead was created is amended before the death of one of the spouses, the right of survivorship is governed by the amended law: Tyrrell v. Baldwin, 78 Cal. 470; Threat v. Moody, 87 Tenn. 143. Under the Texas statute existing in 1863, the homestead vested absolutely in the widow of the deceased husband, where he dies insolvent, exempt from any claims by his heirs or creditors: Watson v. Rainey, 69 Tex. 319; Childers v. Henderson, 76 Tex. 664. See also Kite v. Kite, 79 Iowa, 491, for the rule in Lowa

HOMESTEAD - EFFECT OF DEATH OF HUSBAND OR WIFR. – Effect of the death of the wife upon the honestead: Revalk v. Kraemer, 8 Cal. 66; 68 Am. Dec. 304, and particularly note 309. In Arkansas, the minor children and the widow of one who has died are entitled to his homestead: Winters v. Davis, 51 Ark. 335; Sansom v. Harrell, 51 Ark. 429: Stayton v. Halpern, 50 Ark. 329; Nichols v. Shearon, 49 Ark. 75.

Under the Iowa statute, the widow may elect to occupy and enjoy her de. ceased husband's homestead during her natural life, or to take a distributive share of one third in fee-simple of the realty of which the husband was seised at his death: McDonald v. McDonald, 76 Iowa, 137. Compare Nicholas v. Purcell, 21 Iowa, 265; 89 Am. Dec. 572, and note. Upon the death of either sponse, there cannot be thereafter any abandonment of the homestead on the part of the survivor, if the title was in the deceased, except by an actual set. ting off of the distributive share to such survivor under his or her election to that effect: Darrah v. Cunningham, 72 Iowa, 123.

In Minnesota, under the statute of 1876, a surviving spouse was entitled to a life estate in homestead realty independent of the rights of the minor children: McCarthy v. Van der Mey, 42 Minn. 190. But wbere a homestead right has been lost by a failure to comply with the requirements of the law, the premises do not pass to the surviving spouse: Baillif v. Gerhard, 40 Minn. 172

Under the Mississippi code, the surviving husband takes the homestead owned by his deceased wife, only when she died intestate, leaving no issue: Kelly v. Alred, 65 Miss. 495.

In Missouri, however, a husband is not able by his will to deprive his wife and minor children of their rights in the homestead owned by him at his decease: Rockhey v. Rockhey, 97 Mo. 76; and after all the children have attained their majority, the widow is entitled to the exclusive use and occupancy of the homestead: Rockhey v. Rockhey, 97 Mo. 76. For the home. stead right of each child expires when it attains its majority: Quinn v. Kinyon, 100 Mo. 651.

In North Carolina, in Tucker v. Trucker, 103 N. C. 170, it was decided that a homestead, whether laid off to the husband in his lifetime, or to his surviving wife after his decease, leaving no children, cannot be divested in favor of the heir by the release or satisfaction of the deceased man's debts.

Under the Texas constitution, a homestead is not subject to partition, when the party receiving it in partition would be entitled to possess it Against others, so long as the surviving spouse elects to occupy it, or so long us the guardian of the minor children is permitted to occupy it by a court of competent jurisdiction: Hudgins v. Sansom, 72 Tox. 229. For the home. stead is not lost by the death of the wife, if the husband continues to make it his residenco: Taylor v. Bouloare, 17 Tox. 74; 67 Am. Deo. 642 A surviving husband may sell the homestead to satisfy an indebtedness of the community property out of which it was carved, even though the wifo left a ohild surviving her: Fagan v. McWhirter, 71 Tex. 567.

The Virginia code provides that after the husband's death the homestead shall continue for the benefit of the widow and minor children, but when she has married and the children have attained their majorities, the homostead may be subjected to the payment of the deceased husband's debts: Hanby v. Henritz, 85 Va. 177.

Where minor children survive both parents, they tako the entire estate in an ancompleted homestead entry, to the exclusion of adult children: Bernier v. Bernier, 72 Mich. 43. When upon the death of the owner of a homestead no constituent of the family survives, the oxomption ceases: Childers v. Henderson, 76 Tex. 664.

HOMESTEAD— EXCESS OF AMOUNT ALLOWED BY LAW. - Although • homestead is in excess of the statutory value, the levy of an execution thereon merely lays the foundation for proceedings for the admeasurement of the excess in value: Lubbock v. McMann, 82 Cal. 226; 16 Am. St. Rep. 108. That a homestead exceeds the statutory value does not prevent the premises from becoming a valid homestead, nor does it subject the whole premises to sale under execution: Hargadene v. Whitfield, 71 Tex. 482. In the abBence of fraud the amount of money expended upon a homestead cannot be considered in determining whether it should be subjected to the debts of the owner: First Nat. Bank v. Hollinsworth, 78 Iowa, 575. Where a homestead exceeds the statutory limit in value, the sheriff, under an execution, cannot sell a part of it, but must proceed onder the provisions of the statute to set apart the exemption before selling the part not decided exempt by the freeholders: Rhyne v. Guevara, 67 Miss. 139; Stone v. McCann, 79 Cal. 460; Meyer v. Nickerson, 100 Mo. 599. See extended note to Blue v. Blue, 87 Am. Dec. 273-281, for the law relating to sales of homesteads under execution, wherein aro discussed cases in which the homestead claimed exceeds the value or quantity allowed by statute. In Illinois, where the homestead claimed exceeds in value one thousand dollars, the excess is liable to the same liens, and may be alienated in like manner as other property owned by the householder: Watson V. Doyle, 130 III, 418

PARKER V. LARSEN.

(86 CALIFORNIA, 236.) WATIR TROM ARTESIAN WELLS - LIABILITY FOR PERCOLATION. – One hav.

ing artesian wells upon his land, and so using them that the water thera from forms in a pool and thence percolates beneath the surface so as to injure the lands of an adjacent proprietor, is answerabilo in damages for the injuries thus occasioned. C. D. Wright, for the appellant.

T. 8. Laine, for the respondent.

BELCHER, C. C. This is an action for damages and an injunction. The court below gave judgment for the plaintiff, and the defendant appeals on the judgment roll. The facts found are, in substance, as follows: The plaintiff and defendant own adjoining tracts of land in Santa Clara County, the plaintiff's tract lying north of defendant's. Both tracts are adapted to and are used for agricultural purposes. They are nearly level, but there is sufficient slope 80 that water will flow from the land of defendant to and upon the land of plaintiff. The defendant raises alfalfa on bis tract, and in order to do so, it is necessary that the ground be irrigated two or three times during the summer. He has two artesian wells upon the upper end of the tract, which are so capped that the water can be shut off or permitted to flow, at his pleasure. He has also excavated along the north side of his land, and two or three feet from the plaintiff's south line, & shallow ditch, which is several hundred feet long, and has no outlet or drain from either end. In excavating this ditch, the earth was thrown up on the north side thereof, that is, between the ditch and the plaintiff's line. When he wishes to irrigate his land, he removes the caps and lets the water flow over the surface for ten days or two weeks, and when it is sufficiently irrigated, the wells are again closed. The excess of water not absorbed and held by the soil flows into the ditch above mentioned, and forms a pool some two or three hundred feet in length and some six or ten inches in depth, and remains there for about a week, and until taken up by evaporation and percolation. Upon the west side of defendant's tract is a lane, and upon the side of it a ditch, much lower than his land, into which, at a very small expense, and with little inconvenience, he could drain the water from his ditch, and probably prevent any injury to plaintiff.

During the last two or three years, and two or three times each summer, defendant has irrigated his land in the manner above described, and on each of these occasions the water bag accumulated, as above stated, and has slowly percolated beneath the surface, and through the embankment, into the plaintiff's land, and has saturated the soil to a considerable distance, and to the extent of three acres, which has thereby been made wholly useless for any purpose of ordinary hus. bandry. And during this period, upon one or more occasions, the water from these wells has flowed over the top of the ein. bankment, and thence upon the surface of the plaintiff's field.

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