Dufour

I concur. No order was made striking out the cross-complaint; but the court finds it was withdrawn. Assuming, however, that it is still a part of the record, and that the court erred in admitting evidence to contradict the defendant’s allegation that the water flowing from the spring formed a natural watercourse, there are no specifications of error. *621 The appellant’s contention, therefore, cannot be considered.

The findings support the judgment, and there is no specification as to the insufficiency of the evidence to support any of the findings. The failure of the court to find on all the issues is not assigned as ground for a new trial, — it is not alleged that the decision is against law. As the facts found support the judgment, the failure of the court to find on any issue not necessary to support the judgment cannot be considered on the appeal from the judgment. (Winslow v. Gohrensen, 88 Cal. 450 .)

This is an action to restrain respondent from unlawfully diverting certain waters claimed to have been appropriated by appellant under the provisions of the Civil Code. Judgment went for defendant, and this appeal is. prosecuted from the judgment and order denying the motion for a new trial. The Endings of the court are not attacked, and the facts of the case may be briefly stated as follows: In the year 1888, Du-four acquired title to section 36 of a certain township, and range situated in Kern County. Prior to this event said realty was the property of the state. Upon this tract'of land was a small tract of marsh or swamp land, in which the water came to the surface of the ground. As early as the year 1880 plaintiff made an excavation or reservoir some Eve feet in diameter in this marsh, in which the water collected, and from thence it was transferred in a small underground pipe a mile or more distant to the railroad station of Cameron, where it was applied to the various uses of plaintiff. In the year 1886, plaintiff, in pursuance of sections 1410 et seq. of the Civil Code, posted a notice at the said reservoir, claiming five inches of said waters measured under a four-inch…

I am not able to concur in the judgment of affirmance. It is true that the pleadings, the objections and exceptions (and the want of them), the findings, and certain occurrences at the trial, present such an uncertain, disjointed, and unsatisfactory record, that it was difficult to see what was or was not decided in the court below. But I think there should be a new trial, so that, under amended pleadings and proper findings, it may be discovered what the real facts of the case are, and what principle of law is applicable to the rights asserted by the parties. And I think that the deficiencies of the findings are ground for reversal.

In the complaint it is averred, in substance, that “ on the seventh day of October, A. D. 1886, the plaintiff appropriated the waters flowing into and from a certain spring [describing its location] to the extent of five (5) inches measured under a four-inch pressure; that it conveyed the said water to Cameron Station on its railroad, and used it for supplying its locomotives and employees with water; and that it continued to so use it until the-day of February, 1889, when defendant wrongfully diverted it from the pipes and tanks of plaintiff. The…