Jatunn

The plaintiff is the owner of a tract of land through which flows a stream of water known as Wolf Creek, and the defendants, more than five years prior to the commencement of this action, diverted the waters of said stream at a point above where it enters upon the land of plaintiff. This action is brought for the purpose of enjoining the defendants from hereafter taking or diverting any of the waters of said stream, and for a judgment that plaintiff is entitled to have the stream flow down its natural bed and across the land of plaintiff.

In their answer, the defendants allege that plaintiff's cause of action is barred by the statute of limitations. The plaintiff was nonsuited, and from this judgment he appeals.

The land owned by plaintiff is an odd-numbered section, which was granted to the Central Pacific Railroad Company to aid in the construction of its road by the acts of Congress of July 1,1862 (12 U. S. Stats, at Large, 489), and July 2, 1864 (13 Stats, at Large, 356), and the patent therefor did not issue to the railroad company until April, 1884, which was less than five years before this action was brought. The railroad, however, was constructed from Sacramento to the…