2. WILLS 507-"HEIRS."

The will gives the residue, virtually the entire estate, "to my heirs and to be distribut

The word "heirs" is a technical term, and is used to designate the persons who would by the statute succeed in the real estate, or, in Cal-ed to them according to law." Under secifornia, estate of any kind, in case of intestacy. tion 1327 of the Civil Code: [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Heirs.] 3. DESCENT AND DISTRIBUTION 1-INHERITANCE-STATUTE.

OF LANGUAGE.

A testator's intent must be determined from the language of the will, and where it is clear and unambiguous it must be interpreted according to its ordinary meaning and legal import. In Bank. Appeal from Superior Court, Butte County; H. D. Gregory, Judge.

In the matter of the estate of Lydia M. Watts, deceased. Proceeding by Ella Gray and others against A. V. Watts and others and Herbert W. Whitten, as executor of Lydia M. Watts, deceased. From a decree of partial distribution, A. V. Watts and others appeal. Reversed.

"Technical words in a will are to be taken. in their technical sense, unless the context clearly indicates a contrary intention. *

*

It is further provided by section 1334 of the same Code that:

"A testamentary disposition to 'heirs,' 'relations,' 'nearest relations,' 'representatives,' 'legal representatives,' or 'personal representatives,' or 'family,' 'issue,' descendants,' 'nearest' or 'next of kin' of any person, without other words of qualification, and when the terms are used as words of donation, and not of limitation, vests the property in those who would be entitled to succeed to the property of such person, according to the provisions of the title on succession, in this Code."

Both sections are directly applicable here. The word "heirs" is a technical term, and is used to designate "the persons who would by the statute succeed to the real estate [or, in California, estate of any kind] in case of intestacy." Clarke v. Cordis, 4 Allen (Mass.) 466, 480. "The 'heirs' of a person," said this court in Hochstein v. Berghauser, 123 Cal. 681, 687, 56 Pac. 547, 549, "are those whom the law appoints to succeed to his estate in case he dies without disposing of it by will." This is the ordinary meaning of the word, used in an instrument of any kind. Where a will makes a gift to the "heirs" of a person, SLOSS, J. Appeal from a decree of par-section 1334 adds the sanction of statutory tial distribution. Lydia M. Watts, the decedent, was a widow. She left a large es

Lon Bond, Deirup & Deirup, and Samuel J. Nunn, all of Chico, and Samuel M. Shortridge, of San Francisco, for appellants. W. H. Carlin, of Marysville, D. Hadsell, of San Francisco, and Guy R. Kennedy, of Chico, for respondent.

tate, all of which had been community property of herself and her predeceased husband,

Nelson Watts. Nelson Watts had died intestate. The decedent, Lydia M. Watts, left a will. Its first paragraph directs the payment of funeral expenses and debts. The next reads as follows:

"Secondly. I hereby give, devise and bequeath all the rest, residue and remainder of my estate wheresoever situate to my heirs and to be distributed to them according to law."

The third and last paragraph appoints an executor, and directs that no bond be required of him. There was no issue, and no surviving father or mother of either Nelson or Lydia Watts. Lydia M. Watts left brothers and sisters and children of deceased brothers and sisters. The members of this class are the respondents herein. The appellants bear a similar relationship to Nelson Watts. The court below granted distribution to the blood relatives of Lydia M. Watts alone, refusing to recognize the claims of the relatives of Nelson Watts.

definition to the interpretation.

When, then, Mrs. Watts, by the second paragraph of her will, gave the residue to her heirs, she adopted, for the purposes of her testamentary disposition, the statute of succession.

the objects of her bounty, she used a word In designating her "heirs" as which, by its legal definition, embraced those persons who would, under the terms of section 1386 of the Civil Code, have taken in the absence of a will. There is no inherent or natural right of inheritance, independent of our statute of succession. Section 1386, which embraces all of that statute material here, affords the only means of ascertaining who are the "heirs" of the decedent. The respondents must rely upon it equally with the appellants, for it constitutes the sole basis for their own status as heirs. It is true that, if the property of the decedent had not been derived from her husband, it would, by virtue of subdivisions other than 8, have passed to her blood relatives alone. But, under the actual facts of this case, subdivision 8 is the governing provision, and under [1-3] If Lydia M. Watts had died intes-it the appellants would, in case of intestacy, tate, one-half of her estate would have pass- have succeeded to one-half of the estate. ed to the appellants, and the other half to That subdivision is as much a part of the the respondents. Civ. Code, § 1386, subd. 8. law of succession as any other, and those The appellants claim that the second para- who inherit under it take as heirs of the degraph of the will gives them the share they cedent widow or widower, not as heirs of would have taken in case of intestacy. This the predeceased spouse. See subdivision 9 contention, we think, must be sustained. of section 1386.

[4] Any suggestion that Mrs. Watts would probably have wished her estate to go to those of her own blood is based on mere conjecture. In any view, it can have no force here. We must determine her intent from the language of her will, and where that language is clear and unambiguous it "must be interpreted according to its ordinary meaning and legal import, and the intention of the testator ascertained thereby." Estate of Blake, 157 Cal. 448, 459, 108 Pac. 287, 291. An analogous situation was considered by us in the recent case of Estate of Marshall, 169 Pac. 672. There the will of the testatrix gave the residue of her estate "to my own family, who I think are all in Mexico." The court held that the use of the word "own," coupled with the concluding clause referring to residence in Mexico, indicated that the testatrix intended to limit her gift to her blood relatives. The entire argument proceeded, however, on the assumption that, in the absence of these "words of qualification," the term "family" (which, under Civil Code, § 1334, is equivalent to "heirs") would have covered the persons designated by subdivision 8 of section 1386. In the will of Mrs. Watts there are no qualifying terms to limit or explain the ordinary meaning of the word "heirs." The testatrix says simply that she gives the residue to her heirs. The further provision that it is "to be distributed to them according to law" only serves to strengthen the conclusion that she was directing that the property should go just as it would have gone under the statute of descent in the absence of any testamentary disposition.

The decree appealed from is reversed.

We concur: ANGELLOTTI, C. J.; SHAW, J.; WILBUR, J.; MELVIN, J.; LORIGAN, J.; RICHARDS, Judge pro tem.

(179 Cal. 10)

PIPER v. HAWLEY et al. (Sac. 2434.) (Supreme Court of California. Sept. 23, 1918. Rehearing Denied Oct. 23, 1918.)

1. WATERS AND WATER COURSES 177(1) DAMS-TEMPORARY INJUNCTION DISCRETION OF Court.

Where a basin had been surcharged with flood waters which, with another storm impending, were steadily rising and threatening, to cross a ridge separating such basin from another basin, whether a temporary mandatory injunction should be issued requiring removal of temporary sack levee along top of ridge built as protection against such water and causing accumulation threatening to cross ridge onto plaintiff's land, was largely discretionary

with court.

2. APPEAL AND ERROR 954(1)-REVIEWDISCRETION OF COURT-INJUNCTION.

An order issuing a temporary mandatory Injunction requiring removal of temporary sack levee along top of ridge separating two basins causing accumulation of flood waters that threatened to overflow plaintiff's lands, will be

sustained, unless court's discretion was clearly abused.

3. WATERS AND WATER COURSES 167(1)— DAMS-SURFACE WATERS-NATURAL FLOW.

Where flood waters overflowing basin threatened to flow over a ridge separating the basin from another basin, landowners in latter basin could not protect their land from overflow by maintaining obstructions on ridge restraining such water as was surface water from passing over ridge at its lowest point of natural elevation in its accustomed course. 4. WATERS AND WATER COURSES FLOOD WATERS - OBSTRUCTIONS TION-DISCRETION OF COURT.

177(1)— INJUNC

In Bank. Appeal from Superior Court, Yolo County; W. A. Anderson, Judge.

Action by Ida B. Piper against Stewart S. Hawley and others. From an order directing the issuance of a temporary mandatory injunction, defendants appeal. Affirmed.

Arthur C. Huston and Harry L. Huston, both of Woodland, for appellants. Elmer W. Armfield, of Woodland, John S. Partridge, of San Francisco, and Arthur B. Eddy, of Woodland, for respondent.

RICHARDS, Judge pro tem. This is an appeal from an order directing the issuance of a temporary mandatory injunction requiring the removal of a certain earth embankment and temporary sack levee from what is known as Knights Landing ridge, in the county of Yolo. The facts out of which the controversy between the parties hereto arose are substantially as follows:

The Sacramento river flows through the Sacramento valley in a general northerly to southerly direction. During its course therein and from a point near its entry into the valley to its mouth it passes between banks

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

raised above the level of the adjacent lands | plaintiff, Laugenour, and others owning land on each side of the river, these lands lying below the ridge. The judgment further proin depressed basins or troughs, varying in vided that such canal should have an elevawidth from 2 to 7 miles, which at intervals tion, on both sides, of sufficient height to are separated from each other by low ridges keep back the waters of Cache creek, and which have been built up by the sedimentary the carrying capacity of the canal should be deposits of streams which intersect these ba- sufficient to take care of the drainage through sins and are tributary to the Sacramento the same. The judgment further provided river. On the west side of the river are two that any cuts or excavations made in the main basins, the Colusa basin and the Yolo ridge should be made under the direction of basin, between which is what is known as the court, and that the ridge should be safethe Knights Landing ridge, which extends guarded from further destruction or injury. from the bank of the river at Knights Land- Subsequently and in the year 1913 a drainage ing in a southerly and westerly direction to- district was created by an act of the Legislaward the town of Yolo, and which was orig-ture of that year (St. 1913, p. 109) having for inally built up by the sedimentary deposits its purpose the cutting of Knights Landing of Cache creek. The Colusa basin lies to the ridge and the construction of a canal through northward of this ridge and the Yolo basin the same to a point near the sink of Cache to the southward, and the levels of each of creek in the Yolo basin. This act, in providthese basins have a gradual downward trend ing for the creation of the proposed drainage toward the south, except as intercepted by district, made express reference to the act this ridge. The natural elevation of the ridge of the Legislature approved December 24, at and near the bank of the river is 38 feet, 1911 (St. Extra Sess. 1911, p. 117), adopting which increases as the ridge extends wester- the report of the California débris commisly. During the winter season flood waters sion transmitted to the federal government 'formerly collected in the Colusa basin from on June 27, 1911, providing for a plan of rains and from the numerous streams which reclamation along the Sacramento river and flow into it and also, in times of high water, its tributaries and creating a reclamation from the overflow of the Sacramento river, board and defining its powers and duties. and these when they reached an elevation in Said act also directed that the board of excess of 38 feet would flow over the Knights drainage commissioners to be created in acLanding ridge at the point of its lowest ele- cordance with its terms should take such vation, making their way into the Yolo basin steps as should be necessary— and thence formerly through Cache slough "to open a cut through Knights Landing ridge into the main river. The lands of the plain- in Yolo county, and to construct a canal leading tiff herein are situated on Knights Landing from said cut for the purpose of draining and disposing of the waters of Colusa basin by ridge about 3,600 feet westerly from Knights carrying the same to the head of the proposed Landing on the river bank and at an eleva- Yolo by-pass as defined by and in tion from 41 to 42 feet, according to the offi- accordance with the general plan of the California Débris Commission." cial data of the state engineering department. In the year 1909, during a period of severe flood, the waters collecting in the Colusa basin, augmented by the overflow of the river, reached a higher elevation than that of the ridge near the river. Reclamation District 108, with other landowners having land holdings in the Colusa basin, in order to relieve the situation, attempted to make a cut through Knights Landing ridge with a view to discharging the waters then collected in the Colusa basin into the Yolo basin. One T. F. Laugenour, a landowner in the Yolo basin below Knights Landing ridge, applied to the superior court of Yolo county for an injunction to restrain the above parties from cutting through the ridge. In May, 1910, said court gave its judgment granting such injunction restraining the defendants in that action from in any manner excavating, cutting, or injuring the Knights Landing ridge, or doing any act or thing whatever in, on or about the ridge which would cause or tend to cause or permit the waters above the ridge to escape through or over the ridge, until such time as a canal could be built, under the direction of the court, to such point that the waters of the Colusa basin could be dis

* * *

The act further provided that:

"No water shall be permitted to flow through to be made in this act until the canal to be conany cut or excavation in said ridge provided structed as hereinbefore provided shall have been completed so as to convey the waters flowing or to flow through said cut to the head of said proposed Yolo by-pass * in a manner satisfactory to the said reclamation board. Said reclamation board shall have power to direct the method of the construction of said cut, canal, and levees."

It will thus be seen that this act of the Legislature creating the Knights Landing Ridge drainage district and defining its purposes and powers was in harmony with and in furtherance of the earlier and larger plan for the confining or returning of the overflow waters of the Sacramento river to their natural channel, preventing this recurring overflow and reclaiming the lands of the several basins lying along the course of said river. Stats. 1913, p. 109. Upon the organization of this drainage district under said act, the defendants in the aforesaid action moved the superior court of Yolo county for a modification of its injunction against the cutting of the ridge so as to permit said district to make a cut of sufficient width through the

order to construct the canal below such cut, [ toward the plaintiff's lands. The effect of the said penetration of the ridge to be tem- both of these changes in the elevation of the porary and to be filled when its immediate ridge at points east of the plaintiff's lands purpose was accomplished so that the waters was to check the overflow of the increasing accumulating above the ridge would not be waters at their former point of exit and to permitted to flow through it until the canal cause them to further accumulate in the Cowhich was to dispose of them below had been lusa basin until they reached an elevation completed. Upon the hearing on this motion which placed the plaintiff's premises in imthe said court made an order approving the mediate danger of overflow. This was the plan of the drainage district for the construc- state of things when the plaintiff herein tion of the permanent works in the ridge and commenced the present action on February canal below for which it provided, and so 15, 1915. By this action and especially by modified its former injunction as to permit the temporary mandatory injunction applied the temporary penetration of the ridge ap- for therein, this plaintiff sought to have all plied for, specifically directing how such obstructions removed from the top of the work should be done, and providing for the ridge to the eastward of her lands which inrestoration of the ridge to its former state terfered with the free passage of the flood when the dredgers had sufficiently done the waters of the Colusa basin over the ridge at work for the doing of which passage through their former point of exit when they attainthe ridge was required. The order also pro ed a height in excess of 39 feet; or, in other Ivided that all of this work should be com- words, to have the natural elevation of the pleted on or before October 15, 1914, or at ridge at these points restored. Upon the such further time as the court should direct. | hearing of the application for this temporary The defendants in said action, having pro- order much testimony was presented, after cured the foregoing order, dismissed their the hearing of which the court made the appeal from the previous judgment of in-order for such mandatory injunction penjunction; and pursuant to such modifica- dente lite, from which this appeal has been tion thereof, the drainage district began taken. making the excavation of the ridge in accordance with the direction thereof. Ida B. Piper, the plaintiff in the present action, was not a party to the former action and does not appear to have interposed any objection to the progress of the work being done by the drainage district by virtue of the terms of the act of its creation nor by virtue of the modification of the injunction granted in the former case. The work proceeded to the point of the refilling of the gap in the ridge so as to put the same in condition to prevent any water from flowing through or over it until the lower work upon the canal had been completed. In order to do this the drainage district apparently deemed it necessary to raise the summit of the ridge at the point of the cut and for some distance on both sides of the same to such a height as would prevent any waters from passing over it in that vicinity even at extreme high water in times of flood. Accordingly, the top of the ridge was raised from its former natural elevation of 39 feet at points to the eastward of the plaintiff's lands, to an elevation of from 48 to 50 feet. Not long thereafter occurred the heavy flood of the winter of 191415, said to be the largest flood known in the history of the region, reaching its maximum in February of the latter year, as a result of which the Colusa basin filled and the waters threatened to cross the ridge at points to the easterly of the plaintiff's premises. In order to prevent this result, Reclamation District 730, one of the defendants and appellants herein, caused to be constructed a temporary sack levee along the top of the ridge extending further westward from the point where the increase of elevation accomplished by the work of the drainage district had ceased,

Reclamation District No. 730 lies, as to the lands included within it, to the southward of Knights Landing ridge, in the Yolo basin. Neither it nor other appellants herein were parties directly engaged in the performance of the work of making the cut through the ridge or the canal below, provided for in the act of the Legislature creating the Knights Landing drainage district. The interest of these appellants in seeking to prevent the flood waters of the Colusa basin from overtopping the Knights Landing ridge was primarily that of preventing the overflow of said waters upon their own lands. Knights Landing Ridge drainage district, which had immediately in charge the making of said cut and the construction of the canal below it, was also made a party to this action and was present by counsel in court when the hearing was had upon the application of the plaintiff for this injunction and offered no resistance to the granting of the same, although said injunction was mandatory in character and required the removal of the more permanent portion of the obstruction of the passage of these waters over said ridge which had been placed there by said drainage district in the course of making said cut. It would seem to be manifest, therefore, that the effect of the removal of the obstruction from the ridge provided for by the order complained of by the other defendants, who are the appellants herein, would not be that of causing any injury to the construction work which had been or was in process of being done by the drainage district, but would be merely that of permitting the accumulating waters of the Colusa basin to pass over said ridge, as formerly, at the point of its lowest natural level

and flow down into the Yolo basin and thus reach and overflow the lower lands of the appellants herein.

[1-3] In the case at bar the trial court, upon the hearing of the application for a temporary injunction, was presented with an extraordinary situation. It was a time of most unusual storm and flood. The Colusa basin had become surcharged with waters which were steadily rising and threatening to obliterate the levees which had been built for the protection of the several reclamation dis

nearly resembles the case at bar in the respect that in that case each of the parties thereto were private parties occupying the The foregoing review of the facts of this relation of upper and lower owners of lands case removes from our consideration in con- across which there was a depression wherein nection with it a number of the questions surface waters were collected in the winter which were involved and elaborately consid-season and into which at times the flood waered in the case of Gray v. Reclamation Dis-ters of Mormon slough overflowed and intertrict No. 1500, 174 Cal. 622, 163 Pac. 1024, mingling there with the surface waters dewherein it was held that the defendant in scended from the plaintiff's to the defendthat action, while engaged in carrying for- ant's lands. The defendant undertook to so ward the plans adopted by both the federal obstruct this depression as to prevent the and state governments for the confinement of flow of both sorts of waters upon his land the waters of the Sacramento river to their and to cause them to collect upon and flood natural channel, thus increasing the navi- the plaintiff's land. The court in that case gability of the river and thus also accom- held that the defendant, while he had the plishing the reclamation of the vast tracts of right to protect his land from the overflow low-lying land comprising the several basins waters of Mormon slough, had no right to adjacent to the course of said river, could obstruct the downward flow of the surface not be prevented from proceeding with such waters in their natural and accustomed work at the suit of some landowner in one course from the plaintiff's lands to his own, of said basins who might be temporarily in- and that in connection with whatever objured by the overflow of his lands consequent struction he constructed against the overflow upon the prosecution of such work, and that waters of Mormon slough he must have first the injury of such landowner was in such a provided for a sufficient canal or ditch to case damnum absque injuria. The court also carry all such surface waters as were accusin that case decided that the several basins tomed to flow in said depression from the lying along the west side of the Sacramento plaintiff's lands to his own. river did not possess the characteristics of water courses as that term is therein defined so as to require that all waters that might from any source be collected in them were to be permitted to take their natural course without obstruction. The court also decided in the same case that the conditions which existed along the west side of the Sacramento river in respect to these several basins and their collected waters were not those pre-tricts in the region and even to destroy the sented for consideration in the case of Miller & Lux v. Madera Canal, etc., Co., 155 Cal. 59, 90 Pac. 502, 22 L. R. A. (N. S.) 391, wherein the annually recurring floods made the stream wider during the period of such floods so as to include therein adjoining lands, in which case such regularly recurring flood waters were to be deemed a part of the ordinary flow of the stream. The chief point of departure between the case of Gray v. Reclamation District No. 1500, supra, and the case at bar arises from the fact that in the Gray Case the defendant was acting in accordance with the declared policy of the state and federal governments in their combined efforts to increase the navigability of the Sacramento river by confining its waters to their natural channel and also to work the reclamation of the vast areas of fertile land belonging to the state or its citizens, lying within these several basins along both sides of the river; while in the instant case the defendants were acting in the purely private capacity of seek-sack levees which had been put in place by ing to protect their lower-lying lands from overflow, and were not in so doing promoting either of the public purposes commended by the court in the Gray Case. The case of Sanguinetti v. Pock, 136 Cal. 466, 69 Pac. 98, 89 Am. St. Rep. 169, in some of its aspects more

embankment and sack levees along the top of the ridge and descend in destructive volume upon the lower lands. Another storm was impending. If the plaintiff was refused the immediate relief demanded it was made to appear that not only her lands but also the lands of other and more remote owners along the ridge would also be overflowed. The vol ume of the rising waters consisted of intermingled surface and flood waters, the proportion of each being impossible of speedy or exact ascertainment. The particular defendant which had placed the main and more permanent obstructions along the tops of the levee at its point of lowest elevation was not objecting to the removal of the material which had been placed there by it, and thus evidently did not anticipate any substantial injury to the work it had been carrying on by the restoration of the ridge at that point to its former natural elevation. If this were done the maintenance or removal of the temporary

the other defendants would become inconsequential, since the overflow waters would pass over the lowest part of the ridge and to the eastward of said defendants' lands. Under such unusual and extraordinary conditions the trial court was invested with a very