Bowen

Plaintiff is the owner of certain land and premises containing twenty-five acres, more or less, situate in the county of Santa Clara, through which a stream, known as Coyote creek, runs, and upon said land and near said stream the plaintiff has his dwelling-house.

Plaintiff uses his land for grazing cattle and other domestic animals, and the waters of said stream are useful and necessary for the watering of plaintiff’s stock.

*238 Defendant maintains a slaughter-house upon or near the stream above plaintiff’s premises, from which the offal, etc., is turned into said Coyote creek, pollutes the waters thereof so that they are unfit for domestic use and unfit for cattle, and the odors therefrom are injurious to health, etc.

Plaintiff avers a nuisance, and that he is specially injured thereby beyond the general injury to others, etc.

Defendant, in addition to general denials, sets up in his answer facts tending to establish a prescriptive right to use the stream as a place of deposit for the offal from his slaughter-house.

The cause was tried by the court without the intervention of a jury, and written findings waived.

Plaintiff had a decree enjoining defendant from depositing…