Ball

The object of this action is perpetually to enjoin the defendant from closing a certain waste-gate in his canal during all such times as he may not be using the water flowing in the canal for the purpose of propelling his grist-mill, —the plaintiff claiming a prescriptive right to divert the water from the canal through the waste-gate, for the purpose of irrigating his land, whenever the water is not being used by defendant for the purpose of propelling his mill.

It is alleged in the complaint that about thirty years before the commencement of this action, the grantors of the defendant constructed a canal about one mile in length, through which they diverted water from Warm Creek, and conducted the same to their grist-mill in the county of San Bernardino, for the purpose of propelling the machinery of said mill, but until within a few days before the commencement of this action néver claimed or used the water for any other purpose; that, subject to the right of defendant to use the water for all purposes of running said mill, the plaintiff, during twelve years before the commencement of this action, appropriated, claimed, and used adversely to defendant, for irrigating his land,…