Hawkins

Action to quiet title to a water right asserted by plaintiffs.

The cause was here before (Smith v. Hawkins, 110 Cal. 122 ), and the general history of the case will be found more fully stated in the opinion then filed. The judgment was reversed, and, the action having been retried in the court below, judgment again went for plaintiffs, from which and an order denying a new trial defendant appeals, contending that the evidence is insufficient to sustain the findings, and that the findings do not support the judgment. It is not necessary to notice the first contention, since we are satisfied that the second must be sustained.

On the former appeal, it appeared from the findings that no beneficial use had been made of the water appropriated through plaintiffs'5 ditch for a period of five years next before the commencement of the action; and it was .held that the right of plaiiltiffs and their grantor to the use of the water being one acquired by appropriation, a failure for that period to devote the'water to a useful or beneficial purpose operated, under section 1411 of the Civil Code, to work a forfeiture of plaintiffs’ rights thereto for nonuser, as against ; subsequent…