Appear from the District Court of the Fifth Judicial District, County of Amador.

On re-hearing. Parke and Struck, the plaintiffs in the Court below, brought this action to recover from defendant the use of the waters of the middle fork of Jackson creek, and for damages, alleging a priority of right thereto. The answer of defendant denied plaintiffs’ priority, and claimed an exclusive right to the use of the waters of that stream. The testimony showed that plaintiffs’ grantors, about the first of December, 1852, located a mining-claim on the creek, at a place called Elliot’s Eanch, and in order to work it erected a small dam in the creek and turned a portion of the water into their claim, for mining purposes.

That in October, 1852, the grantors of defendant projected a line of ditch, by drawing a base line from the lower end thereof to a point on the creek some distance below Elliot’s Eanch, where they designed erecting their dam, and at the same time put up notices on the creek of their intention to use and appropriate the waters thereof in their contemplated work.

That in the spring of 1853, when the ditch was nearly complete, they changed the upper part thereof so as to take the water out of the creek about one hundred rods above the mining-ground occupied hy plaintiffs’ grantors.

That in doing this, they ran the ditch through the Elliot Eanch, and paid Elliot, who was one of plaintiffs’ grantors, a small sum for the right of way, and agreed to give him some water for irrigating purposes. There was some testimony going to show that plaintiffs’ grantors had witnessed the appropriation of the water by defendant’s grantors, and had acquiesced therein.

On the trial, defendant’s counsel asked the Court to instruct the jury “that if those from and through whom the plaintiffs’ claim had the prior right to the waters in the middle fork of Jackson creek, ‘ and they stood by and saw’ those from whom defendant derives his title to the ditch, and the right to the waters of the said creek, appropriate the water of the creek, at a great expenditure of money and labor, under the mistaken idea that the defendant’s vendors were obtaining the first appropriation, and did not inform them of the mistake, that they, plaintiffs’ vendors, and the plaintiffs, who claim under them, are estopped from setting up their prior right at this time.” This instruction the Court refused to give, and defendant excepted.

Plaintiff had a verdict for a small money judgment and for one hundred inches of water. The defendant moved for a new trial, which being denied, he appealed.