Wholey

Appeal from the judgment. Plaintiff is a lower, defendants are upper, riparian proprietors. Parks creek for many years had flowed over the land of defendants to a point on that land known as Batterton crossing, where it divided into two branches called the North Channel and the South Channel. About one-third of the waters of the creek passed onto the plaintiff’s land through the North Channel, while the remaining two-thirds flowed down the South Channel. A third waterway, seemingly an ancient course of Parks creek, left the main stream, about one-half a mile above Batter-ton crossing, and entered upon and extended over the land of plaintiff in a direction parallel with that of the North Channel. This last waterway was known as the Spring Branch Channel. There wras no direct surface flow from Parks creek into it, the point of separation being dammed by gravel, bowlders, and debris, but its bed was lower than the bed of the North Channel, and from North Channel, by percolation and by small but defined surface streams, water rose in this Spring Branch Channel and flowed over plaintiff’s lands. The amount of water so rising bore direct relation to the amount of water flowing through…