Burrows

The parties to this suit are the owners of and cultivate separate farms in Monterey County, lying upon and embracing a natural stream known as Muddy Creek and flowing into Clear Creek, which has its source easterly of their farms, and when running flows in a westerly direction, first through the land of respondent Olds, next through that of respondent Burrows, and then through the land of appellant. During the winter and spring of each year, and in times of great freshets, it flows in a large stream down to and across the lands of appellant, but in the summer and during dry seasons the waters of the stream are much diminished, and but a small quantity, if permitted to flow uninterruptedly, would reach the land of appellant.

The appellant acquired title to his land from the government of the United States by a patent issued to him on April 30, 1883, prior to which time the land was a part of the public domain. The respondents from 1876, for over six years prior to the issuance of the patent, had *565 owned, occupied, and cultivated their respective farms, and continued to own, occupy, and cultivate them until suit brought. During the year 1877, and more than six years before…