Felsenthal

The controversy which resulted in-this action arose concerning the right to water flowing in Hopper Creek, in Ventura County, and the asserted right of defendants to reconstruct and maintain a ditch across plaintiff’s land.

Plaintiff owns 137% acres of land riparian to the' creek. Of this tract about thirteen acres are suitable for cultivation. Defendants own lands in the same vicinity, only a small portion of which is riparian to the stream.

[1] In 1870, when plaintiff’s land was still a part of the public domain, defendants constructed a dam in the creek at a place within what is now plaintiff’s private property. At what time the land now owned by plaintiff ceased to be government land does not appear from the record. From an intake in the dam that defendants thus constructed on what is now plaintiff’s property, they diverted water, through a ditch, across the land, that is now plaintiff’s. A part of the ditch was in the bed of the creek and a part ran along and upon the westerly bank of the stream. The water thus diverted has ever since been used by defendants below the intake, on their lands, east and southeast of plaintiff’s land. In 1878 the channel of Hopper Creek was…