Dannenbrink

This is a suit to quiet title to certain water-rights and to enjoin the defendants from claiming or asserting any claim to said water-rights a.nd from interfering with the full enjoyment thereof by the plaintiffs.

The defendants were awarded judgment on the issues made by their 'answer to the complaint.

In due time the plaintiffs presented a motion for a new trial, which was denied, and this appeal is prosecuted by them from the order denying said motion.

The vital point upon which the decision of the controversy between the plaintiffs and the defendants must depend involves the question whether the latter were entitled to appropriate and thus acquire the right to use the waters which it is claimed have for many years seeped or percolated through a certain ditch, owned by the plaintiffs and their predecessors for over thirty years- immediately prior to the commence ment of this aoti-on and whereby they utilized, principally for mining purposes, a large proportion of the waters of a stream known- as Gwin gulch, in Trinity County.

Said- gulch is a mountain stream and the quantity of water that it carries, like all ordinary mountain streams, varies according to the seasons of the…