Watterson

The use of water for domestic purposes and watering cattle are preferred uses; and the defendant had a perfect right to use a portion of the waters of the north fork of the creek for watering his sheep. (Bear River & Auburn W. & Mining Co. v. New York Mining Co., 8 Cal. 327 ; Washburn on Easements, 223, 224; Ferrea v. Knipe, 28 Cal. 341 ; Hale v. McLea, 53 Cal. 579 ; Gould on Waters, sec. 203.) The defendant has the same right to the reasonable use of the waters of the creek for domestic purposes and watering stock as the plaintiff had; and if necessary for those purposes he had the right to consume all the waters of the stream. (Bear River etc. Co. v. New York Mining Co., 8 Cal. 327 ; Ferrea v. Knipe, 28 Cal. 341 ; Hale v. McLea, 53 Cal. 579 ; Lux v. Haggin, 69 Cal. 259 ; Washburn on Easements, 223, 224; Gould on Waters, sec. 203.) Neither plaintiff nor his predecessors or grantors ever acquired any right to the waters of said creek by appropriation or otherwise, as no notice of intention to appropriate the waters was ever given, or any claim made to the waters of the creek. (Osgood v. El Forado etc. Co., 56 Cal. 571 ; Civ. Code, sec.-1410.)

Richard 8. Miner, for…