Turner

The action was brought to secure a permanent injunction to prevent the defendants from using or from interfering with the use by plaintiffs of one-third of the waters of a certain South Deep Creek, which is a natural stream of water in Surprise Valley, Modoc County. Plaintiffs based their claim upon an alleged prior appropriation by the patentee of their lands, one Jacob F. Bittner, and in a separate count set up the claim of title by prescription. Defendants answered separately and denied all the material allegations of the complaint except the ownership of the lands by plaintiffs, and they filed a cross-complaint in which they claimed all the waters of said creek, first by virtue of prior appropriations, second by adverse user for the- prescriptive period of five years, and defendant Bush made a further claim to said waters of said stream as riparian proprietor. Judgment was for defendants and the appeal is by plaintiffs from said judgment and from the order denying their motion for a new trial. There is really no controversy over the Bush claim to one-third of the water, the evidence all showing that he was and is entitled to it, and, therefore, eoncededly, the judgment as to…