Water-Rights-—Action to Quiet Title and Enjoin Diversion—Support op Findings.—In this action to quiet title to two hundred and fifty inches of the waters of San Jose Creek, and to enjoin the diversion thereof by the defendants, it is held that the findings for the defendants, so far as may be necessary to support the judgment in their favor, are sustained by sufficient evidence.

Id.—Deed Partitioning Mexican Rancho—Effect of Covenant as to-Stream.—Where two owners of a Mexican rancho containing the body of San Jose Creek, made a deed partitioning the land between them, in which they mutually covenanted that notwithstanding the partition, “the rights to the use and benefits of the waters of the San Jose Creek flowing into said Rancho de la Puente or arising thereon, whether for water power, irrigation,, or other- purposes, shall continue and remain as heretofore, to be had, held, possessed and enjoyed by the parties in equal shares, and in their heirs and assigns,”' the effect of such covenant is to bind the successors of one party against the successors of the other, but not to bind the successors of one owner as between themselves.

Id.—Effect of Covenant upon Grant of Non-Riparian Land.—The covenant does not necessarily secure riparian rights to a subsequent grantee of non-riparian lands if not so provided in the conveyance, and if no circumstances are shown raising an estoppel. The mere fact that it was part of the rancho to which riparian rights had extended while the ownership was continuous from it to the banks of the stream, would not preserve that right to the severed tract. The severance under circumstances not showing a contrary intent would cut off such tract from its riparian rights.

Id.—Nature of Stream—Underground Flow—Wells of Upper Riparian Owners—Immaterial Finding against Evidence—Impervious Stratum.—Where the evidence clearly shows that it is the nature of the stream, in flowing from mountain sources through a valley, to have an underground flow in strata connected with the surface stream and forming a part of it, a finding against evidence that some of the underground flow is in a stratum impervious to the stream, and that wells sunk by riparian owners above take from this impervious stratum, is immaterial, where other findings clearly show that such wells materially diminish the customary flow from other strata to plaintiff’s land below.

Id.—Unlawful Diversion not Justified..—If the wells and pumping plants of defendants constitute an unlawful diversion of the stream, it would be no defense that they also took water from another source.

Id.-—Reasonable Use by Upper Riparian Owners—Issue as to Excessive Use not Tendered—Data for Apportionment Unsupplied— Case not Shown.—Where the court found that no defendant takes or uses more water in wells than is necessary for irrigation and-domestic use on his land, if it be conceded that the supply is shown to be insufficient for all riparian owners, yet, as plaintiff has tendered no issue as to excessive use by them from a common source of supply, and has supplied no data for a decree apportioning the stream between the parties, and has relie'd on a paramount right, it follows that if defendants are entitled to a reasonable use of the underground flow as upper riparian owners, plaintiff has shown no ease against them.

Id.—Riparian Rights as to Underground Flow.—Where two or more persons own different tracts of land underlaid by porous material extending to and communicating with them all, which is saturated with water moving with more or less freedom therein,, each has a common and correlative right to the use of this water upon his land, to the full extent of his needs if the supply is sufficient, and to the extent of a reasonable share thereof, if the supply is so scant that the use by one will affect the supply of the others.

Id.—Presumption against Unreasonable Share by Upper Owners—■ Burden of Proof.—The presumption is against the taking of an unreasonable share of the,underflow by upper riparian owners, and the burden is upon the plaintiff, as a lower owner, to prove that it is unreasonable, and such burden being unsustained, plaintiff cannot prevail against them.

Id.—Underground Flow Connected with Surface Stream—Rights of Upper Owners—Prescriptive Title not Tenable.—If the underground flow is connected with and is a part of the surface stream, defendants as upper owners have a common right with plaintiff below to the flow of the stream; and the rights of the defendants cannot be lost by disuse, nor can the plaintiff below acquire adverse user or a prescriptive title as against them by taking the water after it passes their lands.

Id.—Rule as to Percolating Water.—The owner of land in which there is percolating water which feeds a stream issuing upon other land below, has a right to the use of the percolating water on the overlying land, which is a right in common with the riparian owners on the stream fed by such percolations. If the supply is not enough for all, each is entitled to a reasonable share.

Id.—Prescriptive Title Acquired by Adverse Claimant.—Where an upper adverse claimant had diverted the waters of the creek for many years by means of a dam and ditch, and sunk wells more than five years before suit to protect his appropriation and had used such wells adversely to the plaintiff and to the knowledge of the plaintiff for the full period of limitation and pleaded the bar of the statute, the action is clearly barred as to him.

Id.—Small Well Bored within Five-Year Period—Substantial Injury not Shown Justifying Injunction.—Where it appears that a small well was bored within the five-year period, but the court finds that the flow from it is very small, it will be presumed from the findings and judgment that the quantity was negligible, and did not show a substantial injury justifying an injunction.

Id.—Creation of Public Nuisance by Adverse Claimant—Bar of Statute not Defeated.—-The fact that the adverse claimant created a public nuisance by allowing his artesian wells to go uncapped in the winter season cannot preclude his obtaining a prescriptive title by adverse user during the irrigating season. A private owner, if specially injured, may sue for damages for such nuisance, but he cannot invoke the public right which is not barred, and thus avoid the effect of the statute of limitations upon his private right.

Id.—Effect of Waste upon Underground Strata not Pleaded.— Whatever may be the effect of such waste to diminish the underground flow during the irrigating season, by decreasing the pressure thereon, and whatever, cause of action plaintiff may have upon that ground, no such waste being pleaded, he cannot rely upon a cause of action of that character.

Id.—-Running of Statute of Limitations.—The running of the statute of limitations in favor of the defendant pleading the statute was not deferred until the extraction of the water had begun to diminish the flow at plaintiff’s dam, but ran from his diversion, where it appears that plaintiff had knowledge of the flow from the wells immediately and that it would tend to diminish such flow, and that the effect was immediately perceptible.