Senior

Action to quiet title to a water right. The defendants had judgment, and the plaintiffs appeal therefrom, and also from an order denying a new trial.

In 1883, J. D. Hines settled upon one hundred and sixty acres of public land through which a small mountain stream known as San Antonio creek flowed, and constructed a dam and ditch by which he diverted from said stream about seventy-nine inches of water, and discharged the same upon said land. No notice of said appropriation is shown to have been made, and its purpose, and the quantity of water appropriated, can only be determined from its subsequent use. That a valid appropriation may be so made, see Wells v. Mantes, 99 Cal. 583 . The defendants claim under said appropriation.

Edwin Senior, one of the plaintiffs, in 1886 settled upon one hundred and sixty acres of public land below the Hines place, through which said stream also ran, and on October 29, 1887, posted a notice claiming to appropriate fifty inches of. the water of said stream, measured under a four-inch pressure, and constructed a ditch to convey the same for use upon his said land.

J. D. Hines died in December, 1886, and Alice Hines obtained a patent for the land…

I dissent. The action was tried without a jury, and the court made very full findings. Judgment went for defendants, from which} and also from an order denying their motion for a new trial, plaintiffs appeal.

The action may be called, generally, I suppose, an action to quiet plaintiffs’ title to certain waters of a stream called San Antonio creek; but it is exceedingly difficult to tell from the complaint what the particular right is which plaintiffs seek to have declared, or what the particular wrong is of which they complain. It would have been much better if the court had sustained the demurrer to the complaint, at least upon the grounds of ambiguity, uncertainty, and improper joining of causes of action. The complaint could then have been amended so as to have shown clearly what the plaintiffs’ asserted right was. The only exceptions presented by the record *509 are to the insufficiency of the evidence to sustain the various findings; and, of course, these exceptions are subject to the rule that a finding must be sustained when there is substantially conflicting evidence respecting it.

The complaint and the prayer show that the main foundation of plaintiffs’ asserted rights…