Water-Bights—Injunction—Diversion of Underground Flow of Stream—Support of Findings.—In this action to enjoin the diversion by defendant of the water of a stream which flows in underground strata to the well of the plaintiff, and the flow of which is essential to supply plaintiff with water for the irrigation of his orchard, it is held that the findings for the plaintiff have ample support in the evidence, and sustain the perpetual injunction granted by the decree.

Id.—Width of Water Supply—Other Wells.-—While this controversy concerns only the plaintiff and the defendants, and must be disposed of according to their respective rights, yet as bearing -upon the correctness of the findings as to plaintiff’s source of supply this court may consider the evidence showing that the underground water channels underlie several square miles of territory in the Santa Clara Valley and are connected with other wells in vast gravel beds extending for miles northerly of the gorge which forms the point of diversion by the defendants, and that these wide strata are all affected by the flow of the underground waters in proportion to their volume.

Id.—-Flow of Water under Pressure Immaterial—Flow as Part of Land.—While the evidence in fact sustains the finding that the flow of water to plaintiff’s well was under pressure, yet that fact is immaterial in determining plaintiff’s legal rights. The right of a person owning land upon a channel of underground water is not measured by whether the water is under pressure, but by considering whether the waters came to him in a natural defined flow so as to constitute a parcel of his lands.

Id.-—Source of Supply Immaterial.—While the evidence shows clearly that one single river enters the region in which plaintiff’s land is situated, yet it is of no real consequence what is the source of supply coming to the plaintiff’s well and many other wells throughout the valley, since the evidence shows clearly that plaintiff needs all the water that comes through the gravel channel to his well, from whatever source derived, and defendants cannot deprive him of any water to which he is entitled as against them by reason of its natural flow to his stratum.

Id.—Intention of Defendants to Divert Water.—Considering all the facts in evidence bearing on the intention of defendants to divert the waters, it is held that the court was warranted in finding that it was the defendants’ intention, unless restrained by the court, to divert all of the waters of the river, both surface and subsurface, and that, so far as their acts disclose, they intended to do so by the means and methods which the court found were being employed or contemplated by them.

Id.-—Failure to Find—Alleged Intention to Divert only Flood Waters—Absence of Evidence.—-The failure to find upon an allegation in the answer as to defendant’s intention to divert only such portion of the storm or flood waters which for a portion of the year rushed down the channel of the river to the bay of San Francisco and were wasted and lost therein is immaterial, where no evidence was introduced by the defendants in support of this allegation.

Id.—Bights of Owners of Flow in Flood Waters—Burden of Proof as to Surplus.—While the owner of the underground flow is only entitled to the flow of the flood waters to the extent that they may replenish his water-bearing stratum, still his rights to the accustomed flood flow of the stream for that purpose is paramount to that of an appropriator to divert any of the waters for use beyond the watershed. If the accustomed flow is more than is needed to supply the underground flow, the burden of proof was upon the defendants seeking to appropriate any surplus water, to prove that there is a surplus which would be wasted and lost if not appropriated.

Id.—Findings—Bights of Subsurface Owners in Storm Waters.— The findings supported by the evidence clearly establish the rights of the subsurface well-owners in so much of the storm waters as is required to serve the necessary purpose of adequately supplying the subsurface flow of waters in the gravel beds underlying the Santa Clara Valley, including the storation thereof necessary to supply plaintiff's well with an adequate and constant flow of water thereto.

Id.—Bights of Claimants of Percolating Waters—Common-Law Bule Modified.—In this state, in view of its climatic conditions and the necessity of irrigation of arid and semi-arid lands, the common-law rule as to percolating waters based on the doctrine of cujus est solv/rn has been modified so as to apply the more reasonable doctrine of sic utere two, etc.

Id.—Modified Bulb Not Confined to Correlative Bights—Protection of Bights in Percolating Waters.—Where no riparian rights are involved, the modified rule is not confined merely to the protection of the correlative rights of users of percolating waters'as between themselves, but those rights must be protected against any diversion thereof by a subsequent appropriator of the stream above, which impairs or destroys vested rights in percolating waters.

Id.—Percolating Bights Protected by Bule of “Seasonable Use”— Injurious Diversion.—The same principle which protects riparian owners by the rule of reasonable use, and precludes any injurious diversion of the stream above them, applies to the protection of the owners of percolating waters which are part of their land, by the same rule of “reasonable use,” and should equally protect them from any injurious diversion above which interferes with the natural advantages enjoyed by them in such use.

Id.—Bight to Bestrain Diversion beyond Watershed.—The owners-of percolating waters have the same natural right as riparian owners to restrain any attempted diversion of the surface flow of the stream beyond the watershed, so as to impair or destroy their rights: to the use of the waters for the irrigation of their lands, to which they are entitled as owners thereof, whether the irrigation be by artesian wells in the subsurface flow, or by use of the surface' flow.

Id.—Diversion of Surplus Plow.-—Though an appropriator may divert, a surplus flow, when it manifestly can serve no useful purpose in supplying the underground artesian wells, including that of plaintiff' in the subsurface flow, yet he cannot so divert storm or flood waters,, as such, which serve a useful purpose in supplying the artesian flow.

Id.—Proper Place for Determining Surplus—Appropriation.—The-only place where a surplus flow of water in any year could properly manifest itself is below the artesian belt, when surplus water therefrom flows into the bay, at which place the surplus could be appropriated without injury to any one, yet it appears that the surplus-flow is only occasional, and may not exist at all in any given year. It is manifest that the gorge is not the proper place for appropriating surplus water by diverting the whole water of the stream, upon the flow of which past the gorge the whole flow of percolating-water in the artesian belt is absolutely dependent.

Id.—Decree Enjoining Use of Appliances at Gorge—Plaintiff NotEstopped.—The decree enjoining the use of a shaft, pump, and appliances constructed at the gorge was proper when it manifestly appeared that the use of the same would deprive the plaintiff of his. rights. The plaintiff is not estopped to maintain his action to enjoin. the use of the same, after their construction, where it was brought as soon as it reasonably appeared that the proposed diversion by means thereof would injuriously affect the supply of water in plaintiff’s artesian stratum.

Id.—Proposed Modification of Degree—Absence of Pleading or Evidence..—The contention of appellants that the decree should be so modified as to permit them to store the waters of the watershed in reservoirs, and to require them in each season to supply the stream with a specific quantity of water for use in the artesian belt, on the theory that they would thereby appropriate the surplus water, whatever other objections there may be thereto, cannot be sustained when there is nothing in the pleadings remotely suggesting such decree, and no evidence was given in relation thereto.

Id.—Appellants Estopped to Claim Modification.—As appellants did not assert any right to impound the storm waters and release them in any given quantity below the gorge, so as to supply plaintiff’s and the other artesian strata, but asserted that plaintiff had no right to any of these waters, but that appellants had a perfect right to divert and use them all, they cannot be heard to complain that the court did not embrace in its decree a plan which they had never asserted a specific right to, or asked to be made.