Oneto

This is the second appeal in this case. The former appeal, like this, was taken by the plaintiff from a judgment in favor of defendant, and from an order denying his motion for a new trial. The judgment was reversed on the ground that the court failed to find that the use of the water by the defendant and his grantors had been adverse. ( 78 Cal. 374 .)

After the case had been remitted to the trial court, the defendant was allowed to amend his answer so as to aver that for more than five years last past he has been using the water adversely to plaintiff and his grantors.

There is no claim in the answer of title on the ground that the use was adverse, unless such defense is involved in the simple allegation of ownership. In fact, the theory of the defense seems to be, that Bache, plaintiff’s grantor, w'as the owner of a spring from which he had conducted water to his premises, in the city of Sonora; that by agreement with the Antoninis, through whom defendant derives his title, Bache and the Antoninis, some years afterwards, constructed a new ditch and flume, and took in other waters; that it was understood that the Antoninis and Bache should then share the water equally. The new…