Patterson

The object of this suit is to determine the reciprocal rights of the parties to the waters of Shasta river, which flows in a general northeasterly course first through *930 the lands of the defendants, and then through those of the plaintiff. The plaintiff recovered judgment, from which and an order denying a new trial the defendants appeal.

The plaintiff is the owner of two ditches heading on the defendants’ land; the upper on the east, the lower on the- west, side of the river. The upper ditch is alleged and found to be of a capacity of two hundred and fifty inches; the lower of one hundred and fifty (both measured, it will be understood here and elsewhere, under a four-inch pressure); and it is found by the court that for forty-five years or more (i. e., from the year 1855) the water of the river, when sufficient for both parties, has been habitually diverted and adversely used by the plaintiff and his grantors in the irrigation season to the full capacity -of the ditches, and that when the water became insufficient (which was about the month of July each year) one-half of the water flowing in the river at the upper or south boundary of defendants’ land was so diverted and…