I dissent. Plaintiff claims exclusive right by appropriation to six hundred inches of water, or, when there is not that quantity, then to all the water in the creek, between two designated points on the creek. He avers that he now is, and for twenty years last past has been, the owner of, and entitled to the exclusive use of, said water. He charges that defendants forcibly took possession of one of his ditches June 15, 1893, and diverted, and continue to divert, fifty inches of water, to his damage in the sum of $300, and that they threaten to continue such diversion. Templey denied all the material allegations of the complaint, and set up a right in himself, by appropriation, to twenty inches of water, “being seepage water from a ditch taking all the waters of Ditch creek, in Cottonwood mining district, and extending from Ditch Creek to the ‘Blue Gravel Mining Claim,’ so called.” Plaintiff testified at the trial that he *197 owned five ditches by which water was taken from Ditch creek, and in 1878 he put upon record a notice describing his several claims to water. He also testified to the use of water from these various ditches down to the year 1892. In the notice, posted and recorded in 1878, he says: “Take notice that I own three ditches now taking waters of Ditch creek, a tributary of Cottonwood creek, and upon which this notice is posted,—one of them called the Crawford Ditch, ’ one the ‘Haserick Ditch, ’ and the other constructed by me in 1870 to turn waters from this creek to the Steve Oysler ditch; and I claim the first right to the waters of this creek for said ditches to the full capacity, which ordinarily is all of the waters of this creek. I now claim surplus water in high waters, after said ditches are supplied, and the waters below said ditches, to the extent of five hundred inches, under a four-inch pressure, ’ ’ etc. There was no evidence tending to prove any later appropriation by plaintiff. The court found “that plaintiff above named is now, and for twenty years last past has been, the owner, and entitled to the exclusive use, to the extent of five hundred inches, measured under a four-inch pressure, when there is that quantity, and, when there is not such quantity, then to all the water flowing in Ditch creek,” etc. In 1888 the plaintiff made a conveyance to one McFarland, in which it is recited that in consideration of the sum of $6,000, and other considerations, the party of the first part “does by these presents bargain, sell, convey and confirm unto said party of the second part, and to his heirs and assigns, forever, all of his right to the use of all of the waters of Ditch creek. Said waters to be taken out at a point on said creek about one mile above the head of the Wm. H. Smith’s old ditch, and tapping said creek where the Blue Gravel Mining Company’s ditch taps said Ditch creek, in the Cottonwood mining district, county of Siskiyou, state of California. To have and to hold all and singular, the first right to the use of all of the waters of said creek, together with all rights appurtenant thereto, ’ ’ etc. The appellant contends that by this deed plaintiff parted with all his right to the waters of Ditch creek, and as there was no evidence tending to show that plaintiff had, by appropriation or otherwise, subsequently acquired any water rights in the stream, and, furthe-rmore, as the court expressly based its finding in favor of plaintiff upon rights which had belonged to plain *198 tiff for twenty years, the finding is wholly without support from the evidence. It seems that there was already a dam at the point indicated, and that the Blue Gravel miners were taking water for these mines. The deed was for the owners of that mine, or some oi; them; and it is argued that the deed was merely intended to settle and assure their right to take all the water at that point, and for their mine. A contrary intent is indicated in the deed, which provides that the grantee shall not sell water for one particular purpose. Whether this attempted limitation be valid or not, it shows that the use of the water was not to be confined to working the mine. That the deed conveys all the rights of the grantor is so plainly expressed that construction is neither called' for nor proper. It is twice expressed without qualification : “All of his right to the use of all the waters of Ditch creek, ’ ’ and 11 the first right to the use of all the waters of said creek, with all rights appurtenant thereto.” There being a clear grant of the water and water rights, a condition which would prevent the grantee from the full enjoyment of the estate granted would be void as repugnant; also, under section 1070 of the Civil Code: Wilcoxson v. Sprague, 51 Cal. 640 ; McLennan v. McDonnell, 78 Cal. 273 , 20 Pac. 566 ; Dodge v. Walley, 22 Cal. 225 , 83 Am. Dec. 61 . The case of Maker v. Lazell, 83 Me. 562 , 23 Am. St. Rep. 795 , 22 Atl. 474 , is a very instructive ease on this subject. The cases are collated and reviewed, and the objection that the rule will sometimes defeat the intention plainly manifested is answered.

I think, however, that this language in the deed cannot be regarded as a limitation or as a condition. As to limitations and conditions, the language of a deed must be construed strictly against the grantor. It is otherwise as to a reservation : Civ. Code, sec. 1069. By a reservation the grantor reserves to himself some right or property which did not before exist, such as rents and easements. An exception withdraws from the operation of the deed some part of the subject matter of the conveyance. However construed or understood, the statement that water is to be taken out at a certain point cannot be a reservation. And it is equally plain that it is not an exception. It is claimed that it must be construed as a grant only of such water as could be diverted at the point mentioned. Such conclusion is against the obvious and unambiguous language of the deed. All of plaintiff's appro *199 priation of water was from points below the Jillson’s or Blue Gravel dam. He testified, and, indeed, the very reason of the contention is, that a great deal of water percolated into the stream below the dam. This water, so far as included in his appropriations, certainly passed by his deed. But he cannot sell the right to take water from the stream at a point above his appropriation, and still maintain, as against other appropriators, his water rights below. If he had not authorized the diversion, there might have been water enough for all. And, if the water diverted does not come out of his water right, how could he sell it? Again, Smith did not own the stream, or its bed or banks. It does not appear that he was a riparian proprietor on the stream. He had no power to fix the point of diversion, nor any apparent interest in the question. The grantee acquired title to the water from him, but could not also acquire a right to build a dam at any point. I think the finding in favor of the plaintiff’s right to the water unsupported by the evidence.

The plaintiff, in his complaint, charged that the defendants forcibly and against his consent took possession of a ditch belonging to plaintiff, and through it diverted from Ditch creek fifty inches of water which belonged to the plaintiff. Appellant denied plaintiff’s right to any water, and also his ownership to the ditch, and that he at any time diverted any water whatever from the creek, except what seeped through the dam and from the Jillson ditch, and averred that he claimed by appropriation twenty inches of water, all of which was seepage water from the Jillson ditch, but was not taken by him from Ditch creek. Jillson, as well as Templey and Williams, testified upon this point favorably to defendant. The court, however, found this issue, also, for the plaintiff. I can find no direct evidence in the record to the effect that appellant ever took any water from Ditch creek except as above stated.

Templey and his witnesses testified that he had dug a ditch below the Jillson ditch, and that all the water he took came by percolation from that ditch. Upon this it is contended that, upon the construction of the deed claimed by plaintiff, this was water which had been taken out of the stream at the point mentioned, and, therefore, water which he had sold. This would present the question whether an appropriator can prevent other parties from taking from the stream water *200 which, left undisturbed, would percolate into the stream, and help to furnish the quantity to which he had acquired a right by appropriation. As this ease now stands, it is not necessary to determine what the respective rights of the parties would be under such circumstances. It may possibly not be material upon a new trial, and, as it is an important question, which is involved in several other cases, I think it better that it should be passed for the present. I think the judgment and order should be reversed.

I concur: Henshaw, J.