Gould

Action for damages resulting from the alleged diversion of water by defendant from Montecito Creek, in the county of Santa Barbara, and for a perpetual injunction against such diversion in the future. Both parties claim to be riparian proprietors upon both sides of the creek, the defendant's land being about one mile above that of the plaintiff.

The complaint charges that in January, 1882, by means of a dam across a main branch of the creek (the Cold Spring branch), and certain flumes and ditches erected and maintained by the defendant, he “prevented a portion of the waters naturally flowing in said creek from flowing down to and reaching plaintiff's land and premises; that defendant wrongfully and unlawfully has .continuously since said time appropriated *148 and taken for his own use a large portion of the waters naturally flowing in said stream as aforesaid, and has wasted said water and applied the same to unlawful purposes, and prevented the entire quantity so taken from again returning to the natural bed or channel of said Montecito Creek or any of its branches, and said waters have, by means of said unlawful diversion, been wasted and lost, and have not reached the land of…