Dedmon

The plaintiffs, claiming to have acquired by prior appropriation the waters of Adam’s Creek and its tributaries in Sierra County, commenced this action against the defendants to recover damages for a diversion of said water, and to restrain them from further diverting the same. The case was tried by the court, and judgment rendered in favor of the plaintiffs, against the defendant Goble, and in favor of the other defendants. The findings are very elaborate and carefully prepared, and appear to give a history of the appropriation of the waters in question by the several parties to the action and their predecessors in interest for a period of twenty years. The plaintiffs moved for a new trial, upon a statement of the case, upon the ground of the insufficiency of the evidence to justify the findings, and that the same are against law, and assign as a particular error that the evidence was insufficient to justify the eighteenth finding of fact.

*213 It is a sufficient answer to this assignment of error that the finding itself is not upon a material issue in the case, and that the judgment does not depend upon this finding. Irrespective of this, however, the evidence of Horton and…