Gallaher

The plaintiff is an owner of land bordering on the Cold Spring branch of Montecito creek, and this action was brought for the purpose of restraining the defendant from diverting the waters of sáid stream.

*243 The defendant is a corporation organized under the laws of this state for the purpose of supplying water to the inhabitants of a portion of Santa Barbara county, and in its answer alleged that prior to January 14, 1888, John Coe and John W. Coe had acquired a prescriptive right to divert the waters of the Cold Spring branch of Montecito creek to the extent of defendant’s diversion, and were then in the enjoyment of that right, and that on that day the defendant recovered a judgment against said John and John W. Coe condemning their rights in said water, and for a separate defense the defendant alleged that plaintiff’s right of action was barred by section 318 of the Code of Civil Procedure.

The case was tried by the court, and judgment rendered for the defendant, and from this judgment and an order denying his motion for a new trial the plaintiff appeals.

The superior court found that the defendant, on January 14,1888, recovered against John and John W. Coe, the judgment…