Overacker

This is a suit in equity to enjoin the defendant from diverting certain waters from Conn creek in Napa county. After a trial had the court made findings and entered judgment therein in favor of the plaintiffs. The defendant appeals from the judgment and from an order denying his motion for a new trial

The complaint alleges that Conn creek has its source in Howell mountain in said Napa county and runs thence in a natural defined channel in a southerly direction until it enters Napa creek near the town of Tountville and flows along or over the lands of both plaintiffs and defendant a distance of about four miles, and that the lands of defendant are nearer the source of said Conn creek and higher up on the said creek than any of the lands of plaintiffs. That the lands of plaintiffs and defendant have always been used by themselves and their predecessors in interest for stock-raising, grazing and farming, and the waters of said creek have always been used by them for domestic use other than irrigation, until about two years ago, and then only the defendant has at times diverted and claims the right to divert all of the water of said creek so as to flow the same entirely upon his own…