65 Cal. 89 | Cal. | 1884
Whether China Davine had flowing in it for more than eight years prior to the trial of this cause, a stream of natural water, is in our opinion immaterial, inasmuch as the defendant had, ever since 1865, appropriated the waters of the ravine, and had partly used it for irrigation and partly sold it to be used, up to the time of the appropriation claimed to have been made by O’Connor, the intestate of plaintiff.
This last appropriation did not take place earlier than 1873, and did not extend beyond the water which then flowed back into the ravine from the irrigation by defendant, or was suffered
The evidence did not sustain the finding. The right of plaintiff does not exceed what is indicated above. For this reason the order denying the new trial is reversed, and the cause remanded.
Sharpstein, J., and Myrick, J., concurred.
Hearing in Bank denied.