McGuire

The controversy which resulted in this action arose between plaintiff and defendant concerning the right to the use of water flowing in Cuyama creek in the county of Ventura. One W. A. Dorn was permitted to intervene, he asserting an interest in the water superior to that of both the original parties; but, as the court below found against his pretensions and dismissed his complaint “without prejudice,” and he has not appealed, his claims are eliminated from the case.

It appears from the record that in January, 1885, one Beekman took possession of the northwest one-quarter of a certain section 20, the same being unappropriated lands of the United States, and shortly afterwards filed his declaratory statement as a pre-emption claimant thereon, paid the purchase price and obtained the receiver’s final receipt some time in the year 1886, and in *662 June, 1891, the United States patent for the same was issued to him. At the time Beekman entered upon said land there was a ditch thereon constructed by a former occupant leading from a point on Guy am a creek within the boundaries of the northeast one-quarter of said section 20, and thence westerly across a part of such northeast…