Lillis

I concur. I do not think it was essential in the former action for the court to determine the quantity of water flowing through the ditch, but if it was material, such quantity was not fixed. The court, by its decree in this action, has made certain that which was left uncertain in that respect in the former case, wdiere the findings described the quantity as being “ sufficient to fill a ditch twenty feet wide at the bottom and forty feet wide at the top.” Neither the findings nor the judgment in that case attempt to fix the number of cubic feet of water, and as neither the depth of the ditch nor its grade is given, it is impossible to tell what the capacity of the ditch was. It is true, the defendants, in their answer in that action, claimed that they had acquired by appropriation “ the right to divert from said Cole Slough, and to use for the purposes of irrigation and other purposes, as aforesaid, about one hum dred cubic feet of water flowing per second, measured under a four-inch pressure, of the waters thereof”; but as counsel for appellants himself states, the addition of the words “measured under a four-inch pressure” makes the whole *568 description “ a hydraulic…

Th plaintiffs brought this action against the defendant to obtain a judgment declaring that the defendant is not entitled to divert from the channel of Cole Slough any greater quantity of water than forty cubic feet per second, or to divert from said channel any water whatever, except at times when there is more than five hundred cubic feet of water per second passing down the channel, and by the head of defendant’s ditch; and that the defendant be perpetually enjoined from diverting any water from said channel, except at such times and in such an amount. In their complaint, the plaintiffs allege, as grounds for such judgment, that in an action brought by them in the superior court of Tulare County, in October, 1883, against the *555 defendant, for the purpose of obtaining a perpetual injunction against it from placing or maintaining a dam or other obstruction in Cole Slough, and from diverting from said channel any of the waters thereof by means of its ditch or otherwise, the defendant, in its answer to their complaint, alleged that it had acquired a prescriptive right to divert from said channel, by means of a ditch twenty feet wide at the bottom and forty feet wide at the top,…