Sherwood

This action was brought for the purpose of determining conflicting claims to the waters of a stream called Birch or Summit Creek, which has its course in the Sierra Nevada Mountains in the county of Inyo. The court determined that, as between the parties plaintiff and defendants, both being appropriators, the right of the plaintiff was the better, and entered judgment accordingly. Defendants appeal from the judgment and from an order denying their motion for a new trial.

‘ Plaintiff and defendants both claimed to be entitled to use the waters of the creek for agricultural purposes upon lands occupied by them, with this difference: That the lands of the plaintiff did not lie upon or along the stream,'but were situated several miles distant therefrom. In order to obtain water from the creek, the plaintiff was obliged to construct a ditch and conduct the water over and across the intervening elevations of land. Under the plan adopted by the plaintiff the water, after passing through such a ditch, would fall into the bed of a dry creek, which watercourse extended to the plaintiff’s land. The lands of the defendants did lie upon Birch Creek below the point of diversion selected by the…