I concur: I am of opinion that the plaintiffs have failed to make out any case for relief upon the grounds of prescription or estoppel in pais. The reasoning on these points in the opinion of Justice Boss is conclusive.

On whatever rules the rights of the parties herein are to be admeasured, whether by the rules applicable to appropriation, or those applicable to the common-law doctrine of riparian rights, the rights of the parties are at least equal; neither has made out a claim superior to the other. There has never been any exclusive appropriation by plaintiffs prior to that of defendant, and the same may be said of the appropriation by defendant. I can see no exclusive appropriation by either party of the water of the stream, or any part of it. The use of the water has always been had by either party with the observance of the right of the’other to a reasonable use of it for irrigation. Under these circumstances, the parties must be held to have at least equal rights to use the water for the purpose indicated. The court, therefore, in adjudging that the plaintiffs have, under all circumstances, the right to have their ditch flow full of water to the exclusion of the defendant, has violated the equality of right above mentioned, and has fallen into an error for which the case must be *197 tried anew. The foregoing, in my opinion, is the substance of the able and elaborate opinion of Justice Ross, and I therefore concur in it. It is apparent that no question is made, in this case, as to the right to the use of the water for domestic purposes,, and of course nothing is herein ruled in that regard.

—The case as made out in the court below failed to establish an exclusive right of ownership arising out of prescription or estoppel, in the water of the Santa Ana River, to the extent claimed by the plaintiffs.

In my judgment, the rights of the respective parties originated in a riparian source, are held by them in common, and invest each with equal rights to the use and enjoyment of the water of the stream. Being held in common, it is well settled that in a controversy between such owners as to their rights it is the duty of a court of equity to determine the respective rights of the parties so as to give to each the just proportion to which he may be entitled, and if necessary, regulate the use between them according to their rights. (Lyon v. McLaughlin, 32 Vt. 423 ; Arthur v. Case, 1 Paige, 447; Belknap v. Trimble, 3 Paige, 601 ; Webber v. Gage, 39 N. H. 182; Bardwell v. Ames, 22 Pick. 353 ; Ballou v. Hopkinton, 4 Gray, 324 ; Booth v. Driscoll, 20 Conn. 535 ; Brown v. Ashley, 16 Nev. 311 .) That principle was not observed in the adjudication of this case, and I agree that the judgment should be reversed and the cause remanded for a new trial.