CROSS-APPEALS from a judgment of the Superior Court of Santa Barbara County. Prank P. Oster, Judge presiding.

The facts are stated in the opinion of the court.

George H. Gould, R. B. Canfield, and William G. Griffith, for Montecito Valley Water Company, Appellant and Respondent.

The defendants had no right to injure the plaintiff’s right to the surface flow by subterranean tunnels. (Gould v. Eaton, 117 Cal. 542; City of Los Angeles v. Pomeroy, 124 Cal. 635; Vineland Irr. Dist. v. Azusa Irr. Co., 126 Cal. 486; Proprietors of Mills v. Braintree Water Supply Co., 149 Mass. 478;1 Hart V. Jamaica Pond Aqueduct Co., 133 Mass. 488; Strait v. Brown, 16 Nev. 317;2 Emporia v. Soden, 25 Kan. 588.3) The title of plaintiff by appropriation and prescriptive right is good as against the defendants. (Breon v. Robrecht, 118 Cal. 473;4 Wood v. Etiwanda Water Co., 122 Cal. 157, 158; Langford v. Poppe, 56 Cal. 76; Carpenter v. Natoma Water etc. Co., 63 Cal. 616.) A corporation may acquire a prescriptive title. (Bear River etc. Co. v. New York Mining Co., 8 Cal. 527;5 Stein etc. Co. v. Kern Island etc. Co., 53 Cal. 563; Lakeside Ditch Co. v. Crane, 80 Cal. 181; South Yuba Water Co. v. Rosa, 80 Cal. 333; Gallagher v. Montecito Valley Water Co., 101 Cal. 242; San Luis Water Co. v. Estrada, 117 Cal. 168.) The plaintiff is entitled to enjoin the diversion of the surface flow by defendants till plaintiff’s rights are satisfied. (Hulsman v. Todd, 96 Cal. 231; Hillman v. Newington, 57 Cal. 56; Stein etc. Co. v. Kern Island etc. Co., 53 Cal. 563; Steinberger v. Meyer, 130 Cal. 157; Learned v. Castle, 78 Cal. 454.) The statement of ultimate facts in the opinion of the judge are findings. (Wixson v. Devine, 67 Cal. 342; Meet v. McClure, 49 Cal. 626; Hidden v. Jordan, 28 Cal. 301; Jones v. Block, 30 Cal. 227; James v. Williams, 31 Cal. 211; In re Kingsley, 93 Cal. 576.) A finding of a diversion of six inches of the surface flow cannot be changed by a different finding. (Wunderlim v. Cadogan, 75 Cal. 618; Smith v. Taylor, 82 Cal. 542.) The answer in relation to the Baton tunnel is insufficient to show a prescriptive right. It does not show an adverse user. (American Co. v. Bradford, 27 Cal. 360.) Notice of adverse user is essential.

Henley C. Booth, and Thomas McNulta, for City of Santa Barbara, Respondent and Appellant.

The corporation plaintiff could not acquire a prescriptive right. The charter is the source of its power in respect to property rights. (Civ. Code, sec. 355; Dillon on Municipal Corporations, 3d ed., p. 562; 4 Am. & Eng. Ency. of Law, 1st ed., p. 230, notes 1, 2; San Francisco v. Spring Valley Water Works, 48 Cal. 493; Smith v. Morse, 2 Cal. 524; Weston v. Hunt, 2 Mass. 502; Vernon Irr. Dist. v. Los Angeles, 106 Cal. 238, 252.) It can obtain title only by actual purchase (Civ. Code, sec. 354), or by condemnation. (Civ. Code, sec. 361.) A prescriptive right cannot be acquired in percolating water. (2 Washburn on Real Property, 70.) Plaintiff’s user was interrupted. (Alta Land etc. Co. v. Hancock, 85 Cal. 227.1) There was no finding of plaintiff’s prescriptive right. (Ball v. Kehl, 95 Cal. 606.) There was a misjoinder of causes of action, and the complaint is multifarious and demurrable. (15 Ency. of Plead, and Prac., p. 180; Boyd v. Hoyt, 5 Paige, 65; Swift v. Eckford, 6 Paige, 22 Emans v. Emans, 13 N. J. Eq. 205.) The evidence shows no certain injury to the plaintiff from the acts of the city. The court did not find upon every issue upon which evidence was introduced, and the judgment must be reversed. (Malone v. Bosch, 104 Cal. 680; Roeding v. Perasso, 62 Cal. 515.) The court could not refer the issues to another action. (Leviston v. Ryan, 75 Cal. 293.)

Richards & Carrier, for Charles F. Eaton and others, Respondents.

The prescriptive right in the Eaton tunnel was properly pleaded. The averment that the adverse user was uninterrupted was a sufficient averment that it was peaceable. (Code Civ. Proc., sec. 322, 324; American Co. v. Bradford, 27 Cal. 360; Chauvet v. Hill, 93 Cal. 407; Smith v. Hawkins, 110 Cal. 122.) The plaintiff corporation had means of knowledge of the adverse user, and the means of knowledge are equal to notice. (Montgomery v. Keppel, 75 Cal. 131;1 Unger v. Mooney, 63 Cal. 586.2) The knowledge of Gould as an officer of the corporation plaintiff imported notice to the corporation. (Phelps v. Maxwell etc. Co., 49 Cal. 337; Jefferson v. Hewitt, 103 Cal. 624; Balfour v. Fresno Canal etc. Co., 123 Cal. 395.) The finding that defendants are entitled to all the water save 1.43 inches is sufficiently definite. (James v. Williams, 31 Cal. 214; Fogarty v. Fogarty, 129 Cal. 46.)

Richards & Carrier, for George E. Coleman and others, Respondents and Appellants.

The complaint states no cause of action against these defendants. It does not show that they have any hostile or adverse claim. (Code Civ. Proc., sec. 738; Pfister v. Dascey, 65 Cal. 403.) The plaintiff had the burden of proof to show injury, and the finding and judgment should have been against him. (Speegle v. Reese, 51 Cal. 415; Golson v. Dunlap, 73 Cal. 157; Reviston v. Ryan, 75 Cal. 293; Monterey County v. Cushing, 83 Cal. 507.) The court had no right to refer the issues to another suit.