Pope

1. The patent to the Muscupiabe Ranch was issued in 1872, in the month of. J une, and this action was commenced in May, 1877, and the Statute of Limitations can therefore have no application.

2. For the same reason the defendants can claim nothing as against the owners of the Muscupiabe Ranch, by reason of the lapse of time since their alleged appropriation of the waters of Lytle Creek.

3. No controversy is made in this action as to the rights of those defendants who are riparian proprietors of the stream by reason of their ownership of the San Bernardino Ranch. The principal question presented is, as to whether it is competent to the defendants, by the mere diversion of the waters of Lytle Creek, which is an unnavigable natural stream, flowing across the Muscupiabe Ranch, (the land of plaintiffs) to deprive the plaintiffs of all interest or right of any nature in the waters of *5 that creek. As being owners of the land, the plaintiffs have an interest in the living stream of water flowing over the land: their interest is that called the riparian right. It is not necessary, in this case, to define in detail the precise extent of the riparian right as existing in this country; it…