Hargrave

Appeal from the order granting a new trial.

Plaintiffs claim ownership in common with some of the named defendants in a certain described ditch, flume, water right, and right of way, by means of which they diverted the waters of Piru river to their non-riparian lands. The ditch was known as the Hargrave & Comfort ditch. They averred the adverse claims of defendants and asked for a decree settling their rights and enjoining defendants from further assertion of such or any claims.

The defendants answered in accordance with their various claims; some asserting ownership in the ditch and water rights, others declaring upon superior rights by prescription. But, in particular, the defendant Cook claimed the rights of a riparian owner to the water of the creek, which rights are pleaded as superior to those of the ditch-owners.

Stripped of matters unnecessary to this consideration the following are the essential facts: Defendant Cook is the owner of the Temescal rancho under United States patent issued in 1871. Piru river flows through this ranch, and thence across the northwest quarter of section 20. About the year 1875, section 20 being public land of the United States, plaintiffs’…