Bree

This is the second appeal in this case—Bree v. Wheeler, 129 Cal. 146 , [ 61 Pac. 782 ]. Upon the second trial, had on amended pleadings, the facts found show that up to 1885, plaintiff was the owner of all the water in dispute and that defendant did not acquire title thereto by adverse possession, or otherwise, unless an agreement, affirmatively pleaded in the amended answer and found by the court, operated to give him the right to one-half of the water.

Plaintiff, who is appellant here, contends that, upon the findings the court should have adjudged him the owner of all of said water instead of decreeing that each of the parties owned one-half thereof. The finding relating to the agreement above mentioned is in substantial accord with the averment of the amended answer in that behalf, and in substance is as follows: In 1885, each of the parties hereto was claiming the water in question, and defendant was using it for irrigating his land, against the protest of plaintiff. They talked the matter over, and it was orally agreed, to avoid litigation and in settlement of their respective rights to the use of the water, that they should divide it, the plaintiff taking it during the…