Chauvet

This action was brought to restrain defendant from diverting the water of an alleged watercourse. Judgment was rendered for plaintiff, — at least, a judgment for costs, — and defendant appeals. If the appeal had been taken by plaintiff, some difficult questions might have been presented. Neither party seems to have had correct notions about riparian rights; but we see nothing in the record of which defendant can justly complain. There are only two or three matters that need be noticed.

1. We think that the complaint is sufficient. It states facts showing that plaintiff is a lower and defendant an upper riparian proprietor upon a stream that is sufficiently described; and the averments of plaintiff’s use of the water for a mill, winery, domestic purposes, etc., are mere surplusage.

2. The main source of the water of the stream was a certain large spring on defendant’s land; and many authorities are cited in the briefs about “subterranean streams,” “percolation,” “water filtration in the soil,” the “ sources of springs,” etc. But the court found, upon ample evidence, that from the spring in question “a stream of water from time immemorial has flowed in a perceptible current,…