Hawkins

Action begun in October, 1892, to quiet, the alleged title of plaintiffs to a dam, ditch, and water right for the diversion of the waters of Wolf creek in Nevada county. As early as the year 1862 one John Ross was in possession of the ditch and sold water from the same. The ditch claimed by plaintiff? is two-thirds of a mile in length; its original capacity was four hundred and fifty-seven inches of water, though it seems to be now so filled up as to be capable of carrying about one hundred inches only. Plaintiffs claim in virtue of a deed to them executed by Ross in March, 1888, which, for the purposes of the decision, we shall assume was sufficient to convey his title to the property in dispute» Since the year 1875 taxes have been annually assessed, against such property and paid by Ross and his sue *124 cessors, the plaintiffs. In 1890 it was leased by plaintiffs to persons who made no use of it, but who paid two months’ rental therefor at fifteen dollars per month.

Defendant owns a piece of land lying below the head of the Ross ditch and riparian to said creek; one-fourth of a mile of the length of such ditch is on defendant’s said land, and was there constructed before…