This action was instituted against a number of defendants for the partition of real estate. Defendant Gai *Page 61 appeals from an order of the court denying his motion for a new trial.
The property described in the complaint consists solely of land, and no reference is made to riparian or other waters or water rights to which the land may be entitled. By answer, appellant claimed affirmatively that as an owner of an undivided interest in the land, he likewise owns an interest in the waters of certain streams flowing through the tract as to which it is riparian.
There were numerous parties whose rights were being litigated in the action, upon none of whom, however, other than plaintiff, was the answer served. For this reason the affirmative matter, conceding it was properly alleged, as to which we express grave doubts, could not be litigated. As to such new matter appellant's codefendants were not in court. Hence, for this reason, if no other, it was not error for the court to find, in effect, that the subject matter of the affirmative allegations of appellant's answer was not involved in the issues of the action. The case of Rose v. Mesmer,142 Cal. 322, [75 P. 905], cited by appellant in support of his contention, bears no analogy to the case at bar. It might furnish authority under which a party interested in the land could, after the partition thereof, maintain an action for the protection of rights in the waters of the stream to which ownership of land might entitle him.
The order appealed from is affirmed.
Allen, P. J., and Taggart, J., concurred. *Page 62