APPEAL from Superior Court, Los Angeles County.

The court below adopted findings of the jury, and made findings of its own, to the following effect: That plaintiff is the owner of all the water rising and flowing in that canyon, in the county of Los Angeles, known as the “Kewen Mill” or “Lake Vineyard Canyon,” as alleged in the complaint, and of the right to use and appropriate the same, except that portion thereof belonging to the defendants; and, further, is the owner of the dams, ditches, reservoirs, and pipes that convey said water, subject to the right of the defendants to use the same for the purpose of taking the waters belonging to them; that the principal aqueduct used by plaintiff for conveying the water is an iron pipe passing through defendants’ land; that J. H. Carpenter, a prior occupant of the Richardson place, asserted a right to use water from Kewen canyon, and had a license from B. D. Wilson, under whom plaintiff claims; that Richardson used the water from 1867, uninterruptedly, under a claim of right, peaceably, adversely, exclusively, and continuously; that plaintiff and its grantor have known of defendants’ claim, and have acquiesced therein; that defendant Richardson, before purchasing his lands, inquired of B. D. Wilson whether the water right claimed by defendant was appurtenant to the land, for the purpose of determining whether he would buy the premises; that Wilson, knowing that such was Richardson’s purpose, and being then the owner of all the rights claimed by plaintiff, stated that such water right was appurtenant to said land, and Richardson, because of that admission, purchased the land, and made valuable improvements thereon; that but for that statement he would not have made the purchase; that defendants, since 1870, used the water in question for the purpose of irrigation, and for domestic and stock purposes; that the quantity requisite therefor is two and one-third inches, under a pressure of four inches; and) that defendants’ claim has been asserted and maintained by defendants, and their predecessors, openly, notoriously, under a claim of right, and adversely to all the world, for twenty years.

On which findings of facts the court found this conclusion of law: That “the plaintiff is the owner of all the water rights set out and claimed in the complaint herein, and also of all pipes, ditches, aqueducts, and reservoirs appertaining thereto, as described in the complaint, except a constant flow of the waters of said canyon of two and one-third inches, measured under a four-inch pressure, on defendants’ said premises, which said quantity of water belongs to defendants for uses upon the lands belonging to them, as hereinbefore found; and that defendants are entitled to the use of said pipes, ditches, aqueducts, and reservoirs for the purpose of storing, preserving, and conducting the same upon their said land, for the purposes aforesaid, and the right to take said water from said pipe, as now constructed, at any point upon their said land”; and directed a decree accordingly.

The appellants, on their appeal, relied on the following points:

(1) The findings did not cover all the issues, since defendants in their answer claim under an agreement made in 1875, when the pipe was put through defendants’ land, that defendants might tap the pipe, and use the water; and also that plaintiff is barred by section 318, Code of Civil Procedure.

(2) The findings were not justified by the pleadings, since defendants’ utmost claim was that plaintiff’s grantors agreed that defendants might tap the pipe, and use water therefrom, while the findings make plaintiff’s ownership subordinate to defendants’ right to use the dams, etc., for the purpose of taking water from Kewen canyon.

(3) The findings are contradictory, since at one place it is found that defendants’ grantors used the water under a license from B. D. Wilson, and at another that defendants and their grantors, for more than twenty years (which carries us back to a time anterior to Carpenter’s selling out to Richardson), have had the open, notorious use of the water, under a claim of right, and adversely to the whole world.

(4) The judgment is not warranted by the findings, nor the pleadings. It adjudges ownership of the waters and dams, etc., used in diverting the same, excepting that defendants own two and one-third inches of water, and are entitled to use the plaintiff’s dams, etc., for the purpose of conducting, storing, and preserving the same, while the prayer of the answer asks for no such judgment; and the answer sets up the agreement that defendants might use the water, made at the time the pipe was laid, which was simply a license. The judgment is not warranted by the findings, because the court does not find that defendants owned the pipe, dam, etc.

(5) The findings are not supported by the evidence, which is discussed at great length.

(6) Errors of law at the trial, excepted to by plaintiff. Defendants Richardson and Hutchinson claimed that they had a right to the water, under Mr. Wilson’s deed to Hutchinson, as appurtenant to the land conveyed. Plaintiff offered to prove declarations of Mr. Wilson concerning the water right of the place prior to the making of the deed. Defendants objected, and the objection was sustained.