Plaintiff claims, and the court found it to be the owner of fifteen miner’s inches of the natural flow of the Cold Springs Branch of Montecito Creek, which waters it carried away to non-riparian lands and sold for beneficial purposes to the inhabitants of Montecito. At different times three separate and independent tunnels were driven by the defendants upon lands owned by them and contiguous to the creek. The portals of these tunnels were above the bed of the creek. They were driven through the native rock, in a northerly direction, following generally the line of the creek and the main branch thereof. While starting above the level of the creek, as the tunnels were driven with slighter incline than that of the natural flow of the creek, they soon were developed, and continued to be developed below the line of the creek-bed. The distances of the tunnels from the creek-bed varied with the sinuosities of the stream from a few hundred to a thousand or more feet. In brief, therefore, and with substantial accuracy, it may be said that the tunnels were driven to one side of the creek, parallel with it, and below its level.
The country through which the creek flows is rocky and mountainous. The mountains are composed chiefly of parallel strata of porous sandstone, some of which strata are fractured and fissured, permitting the ready seepage or percolation of water. These strata extend across the canon and across the line of the creek, which cuts them at a right angle. They are separated from each other by parallel seams of clay practically impervious to water, which serve to retain the waters which each stratum of sandstone has gathered. The stream is formed by meteoric waters falling upon its watershed of some three and a half square miles. Some of these waters flow from the surface into the stream; others reach it by percolation through the sandstone stratifications.
Plaintiff, contending that the direct effect of these tunnels was to lower the plane of saturation, and to withdraw into the tunnels water theretofore naturally flowing in the creek, thus permanently impairing and reducing the supply to which it was of right entitled, brought this action against the owners of these tunnels for injunction and for monetary compensa *584 tion for the value of the water of which it had already been deprived. The court made its findings and gave its judgment, from which cross-appeals are taken by all of the parties. We will first consider the cross-appeals of the plaintiff and of the defendant the city of Santa Barbara, since the determination of the principal questions presented upon these appeals will dispose generally of the main contentions of all the parties, and leave for further consideration only those peculiar to the case of each separate litigant.
First, it should be noted as applicable to all of these appeals that this case is radically different from that of
Katz
v.
Walkinshaw,
One more general observation pertinent to the whole case-should be made. The right is unquestioned, and plaintiff itself nowhere disputes the right, of these defendants to drive their tunnels, to develop, take, and use any and all new waters which they may thus find. Plaintiff’s contention, however, is, that the effect of these tunnels below the line of the surface of the flowing stream is iLst to draw into the tunnels the waters of the saturated sandstone strata above (which saturated strata under normal conditions form a support to the flowing waters of the stream), and thus create a direct draft upon the flow of the stream itself, so that it no longer follows its natural course and bed, but sinks into the lower tunnels, which themselves practically, efficiently, and absolutely form new channels in place of the original surface stream. This effect of the tunnels is denied by the defendants, and this issue and the court’s finding upon it present the principal question in the case.
CROSS-APPEALS OF PLAINTIFF AND CITY OF SANTA BARBARA.
The court, after finding that the plaintiff was entitled of first right to the natural flow of the creek to the extent of fifteen miner’s inches, and that it was devoting this water to a public use, declared (finding No. 9): “That the said tunnels have pierced the strata hereinbefore mentioned and have drawn off the water stored in said strata, and lowered the planes of saturation in said strata (which said planes of saturation had previously thereto supported the flow of water in said creek), and caused the voids and crevices in said strata to be in part emptied of the water contained therein, and caused the waters of said creek and said tribu *586 tary springs and ciénegas to be in part drawn into said voids and crevices and to enter said strata and to pass along said strata and into said tunnels and through the same, and that the said tunnels have caused the partial absorption as aforesaid of the flow of said creek so that no water at all flows down the main branch thereof below the junction of the west fork with said main branch nor over the falls on said main branch, which are about 4,500 feet above plaintiff’s aforesaid dam, nor for a long distance above said falls, and so that only for a short time during heavy rains does any water flow down the east branch thereof into said main branch, but the flow of said creek is partially absorbed as aforesaid into said strata and passes in part into and through said tunnels and is in part given out gradually by the flow of said tunnels from the mouths thereof and that partially by the influence of said tunnels said creek has been destroyed as aforesaid.” It declared as to the city of Santa Barbara (finding No, 8): “That by means of said tunnel said de-
fendant city has since the commencement of this action and prior thereto abstracted and diverted, and still abstracts and diverts, four and sixteen one hundredths (4.16) miner’s inches of water, measured under a four-inch pressure, from the main fork (sometime called the west fork) of said Cold Springs Branch, and said quantity of water now passes into and through said tunnel ánd not in its natural and accustomed channel; . . . that the said city intends to continue to divert and use said waters as aforesaid and to sell the same, unless restrained by the order of this court.” Further (finding No. 11): “That since the commencement of this action and prior thereto, the defendant city of Santa Barbara has, by means of its tunnel aforesaid, abstracted from said Cold Springs Branch a portion of the flow thereof amounting to four and sixteen one hundredths (4.16) miner’s inches of water, measured under a four-inch pressure, which amount of water said city of Santa Barbara has not returned into said stream, but has diverted and applied to its own use and has sold for large sums of money, which said city has received therefor and retained.” And still further (finding No. 13): “That none of the water developed or obtained by or through the city tunnel, other than said amount of four and sixteen one hundredths (4.16) inches, measured under a four-inch *587 pressure, is or has at any time been a part of said stream or abstracted therefrom; on the contrary, all of said water developed and obtained by and through said city tunnel, other than said four and sixteen one hundredths (4.16) inches, measured under a four-inch pressure, are percolating waters, no part of which were ever a part of said stream or necessary to the protection or support thereof.” And lastly (finding No. 17): “That the court is unable to find or determine from the evidence in this case whether or not all or any part, and, if a part, what part, of said four and sixteen one hundredths (4.16) inches of water abstracted from said stream by said city tunnel would, if permitted to flow by said city tunnel in its natural and accustomed way, or if returned from said city tunnel to said stream, reach plaintiff’s dam and point of diversion.” Following these findings, the court announced the following conclusion of law (No. 4), upon which judgment was accordingly entered: “That in
order that equity may be done to all parties herein, leave ought to be and is granted to plaintiff and defendant city of Santa Barbara, and to each of them, and to all and any other persons claiming any interest with, through, or under them, or either of them, in or to said four and sixteen one hundredths (4.16) inches of water hereinafter in this paragraph mentioned, to bring another action to determine whether or not all or any part, and, if a part, what part, of said four and sixteen one hundredths (4.16) inches of water abstracted from said city tunnel would, if permitted to flow by said city tunnel in its natural and accustomed way, or if returned from said city tunnel to said stream, reach plaintiff’s said dam and point of diversion; and for like reason leave ought to be, and is, granted to plaintiff to bring another action to determine the amount of money received by said city of Santa Barbara from the sale of all or such part, if any, of said four and sixteen one hundredths (4.16) inches of water as would reach plaintiff’s said dam and point of diversion if permitted to flow by said city tunnel in its natural and accustomed way, or if returned from said city tunnel to said stream, and to compel said city of Santa Barbara to account to plaintiff therefor.”
It would unnecessarily and uselessly prolong this consideration to enter into a discussion of the evidence bearing
*588
upon finding 9 of the court. It must suffice to say that the evidence justified the court’s conclusion that the tunnels did draw into themselves a part of the natural flow of the creek. But it is contended that, even so, these waters were percolating waters which had so far left the stream as to have lost their distinctive character as part of its flow, within the meaning of
Vineland Irrigation Dist.
v.
Azusa Irrigation Co.,
It is, however, contended by the city of Santa Barbara that, giving all due force and effect to finding 9, the following finding 17, in which the court announces its inability to determine from the evidence whether all or any part of the 4.16 inches of water abstracted from the stream by the city tunnel would, “if permitted to flow by said tunnel in its natural and accustomed way, or if returned from said city tunnel to said stream, reach plaintiff’s dam and point of diversion,” is absolutely destructive of plaintiff’s case, and necessitates either a judgment for the defendant, or, at *589 the least, a reversal of the cause, and, in this immediate connection, that the conclusion of law above quoted and embodied in the judgment, relegating the parties to future litigation for the determination of this question, is improper and illegal. Upon the other hand, the plaintiff contends, upon its appeal, that the ninth and eleventh findings above quoted are findings of ultimate facts, are absolutely conclusive upon the merits of the case, and themselves entitle plaintiff to its judgment, and that finding 17 may and should be disregarded.
Upon behalf of the defendant it is argued that it was incumbent upon the plaintiff to show not only an abstraction of water, but to show detriment and damage caused by the abstraction. That since the court, as it declared in finding 17, was not able, under the evidence offered, to determine whether the 4.16 inches of water abstracted from the stream would reach plaintiff’s point of diversion, the plaintiff had failed to show any loss in the taking by defendant of this water, and that it must be concluded that the water which the defendant took was such waters as are mentioned in
Vineland Irrigation Dist.
v.
Azusa Irrigation Co.,
The trial court in relegating these parties to a future action for the determination of this question, and of the amount in money to which the plaintiff may be entitled for the unlawful taking and disposition of its waters, seemingly relied upon the case of
Bathgate
v.
Irvine,
The court found that since the year 1888 the plaintiff had been the owner of fifteen miner’s inches, which it was actually diverting and distributing among the inhabitants of the town of Montecito, and that the use so made by the plaintiff was a beneficial use for domestic purposes, the watering of stock and the irrigating of otherwise arid lands. Plaintiff’s title was based, first, upon a judgment in its favor in condemnation proceedings instituted by it against John Coe and John W. Coe, and, second, a prescriptive title growing out of its continued, uninterrupted, adverse taking, and use of the waters since the date of the decree in the condemnation suit. Defendant alleges many imperfections and defects in the condemnation proceedings, which it will not be necessary here to consider, the more particularly because it appears that these questions are themselves in litigation in an action brought by the executrix of John W. Coe’s estate against this plaintiff. We think plaintiff sufficiently establishes its prescriptive right to the waters in controversy. First, the use under claim of right is well established. Second, although the use made was for the purposes of rental and sale of the
*593
water, that use is beneficial under the very terms of the constitution itself (art. XIV, sec. 1). Third, the only asserted interruption to the use was by proof of an action brought by Elizabeth A. Coe, as executrix of John W. Coe, one of the defendants in the condemnation suit, against the plaintiff in this case (plaintiff likewise in the condemnation suit), on account of its claim to the water here in question, and it is argued upon the authority of
Alta Land Co.
v.
Hancock
. . . Title by possession, good against all the world save the true owner, defendant already had. He has only the samo title after the statute has run, but the true owner has then lost his right of action.” In this case it is to be observed that the defendant does not pretend to connect itself with the title of the Coe estate, and indeed its claim to these waters is in as strict hostility to the title of that estate as it is to the title of plaintiff. The plaintiff’s title is still good against all the world saving that, as to the undecided question upon the part of the Coe estate, it
is.sub judice.
The evidence in this case demonstrates that this plaintiff refused to recognize the validity of the Coe claim, which only tends to prove that plaintiff’s claim is in fact adverse to the whole world.
(Langford
v.
Poppe,
*594
Plaintiff pleaded ownership, and the court in terms found ownership in the plaintiff. Defendant’s further objection that there is no finding of ownership by prescription is untenable. The court finds ownership and continuous use and occupation for beneficial purposes for the full prescriptive period. This finding of ownership includes all the probative facts.
(Cooper
v.
Miller,
But against this title it is urged that because plaintiff is a corporation it has no power under the law to acquire title by prescription, and is limited strictly in its mode of acquirement to purchase and to condemnation, which is but a form of purchase. (Civ. Code, secs. 286, 360.) It is herein contended that “purchase,” as employed in the code, means the acquisition of title from a voluntary grantor by the payment of price, or other valuable consideration, and that, as the law has not conferred upon these corporations the general right belonging to the individual to “acquire” lands by any legal method, the mode of acquisition must be strictly limited to purchase. We think, however, that this presents altogether too narrow a view of the rights and powers of corporations in this regard. The right of a corporation such as this to “hold” land is of course unquestioned. It is expressly conferred by subdivision 4 of section 354 of the Civil Code. Section 1007 of the same code declares that occupancy for the period prescribed by the Code of Civil Procedure is sufficient to bar an action for the recovery of the property, and confers a title thereto denominated a “title by prescription,” which is sufficient against all. “The same evidence available to prove ownership of a natural person in property may be used to establish the title of a corporation.” (4 Am, & Eng. Eney. of Law, p. 231.) In this state a corporation’s title to water either by appropriation or prescription has been recognized and upheld from the very earliest day.
(Bear River etc. Co.
v.
New York Mining Co.,
The demurrer of the defendant city to the complaint upon the ground of misjoinder of causes of action was properly overruled. Indeed, the appellant city concedes in this case that in an action which is brought by a plaintiff who claims an appropriative right to take water from a stream against several defendants who are alleged to be diverting water from the stream to the injury of plaintiff, it is not necessary that the defendants be acting in concert or by unity of design. Such was the action here brought against independent diverters, with no claim for joint damages against them as joint tort-feasors. The pleading of the plaintiff was proper, under
Hillman
v.
Newington, 57
Cal. 56, and
People
v.
Gold Run Co.,
The trial court filed a paper which it entitled its “Opinion, ’ ’ the views expressed in which were somewhat modified when the formal findings of the court were subsequently prepared, signed, and filed. At the time that the opinion was presented, the court entertained the view that an amount of water in excess of 4.16 inches—namely, six inches of water—was abstracted by the city tunnel, and plaintiff insists that the amount so declared should control, and that this opinion should be treated as the findings-of the court. The position, however, is untenable. The opinion was no more than its name imports,-—the informal views of the court, subject to future modification after argument, which was actually had, the legal expression of those views being found, as only properly they could be found, in the formal findings of fact and conclusions of law.
(Byrne
v.
Hoag,
We have examined the alleged errors in the rulings of the trial court in admitting evidence and find nothing therein of which the defendant city has just cause for complaint.
*596 APPEAL OF PLAINTIFF AGAINST DEFENDANTS OWNERS OF THE
EATON TUNNEL AND OF THE WATERS DERIVED THEREFROM.
The defendants owners of the Eaton Tunnel and of the waters gathered therein do not appeal from the judgment of the court, and appear herein in the role of respondents. Their tunnel was first constructed, and has heretofore been the subject of litigation as to the effect of it upon the flowing water of the stream.
(Gould
v.
Eaton,
It is next urged by appellant that the possession of defendants was clandestine, and not brought to its knowledge until less than five years before the commencement of this action. The water was actually diverted for a little more than five years before the commencement of the action, but the construction of the tunnel antedated the diversion by a year and a half. The work was openly carried on during this time, and it could not be reasonably urged that such work—running a tunnel for six hundred feet in the side of a canon, at a point only five hundred feet distant from plaintiff’s place of diversion—could be carried on clandestinely. From the moment when the tunnel began to take water it would seem that plaintiff was charged with notice. The means of knowledge were certainly open to it.
(Montgomery
v.
Keppel,
It is next urged that defendants’ user did not ripen into a prescriptive title by reason of a composition entered into between the parties for a temporary division of the water flowing in the creek. It is insisted that this agreement em *598 braced the Baton Tunnel flow, which was dependent upon the flow of the creek and its tributaries, and that no contest could have been begun against the tunnel diversion while the flow of the creek which fed the tunnel was being divided under this settlement. The agreement was entered into between the plaintiff, the defendant Charles P. Baton, and G. H. Gould. It may be said in passing that the defendant Bichardson is not affected by this agreement, as his predecessors in title, Sheffield, Vail, and Gillette, were none of them parties to it. But, as to the agreement, it does not appear to have embraced within its contemplation (excepting in one minor clause) the waters drained by the Baton Tunnel. The recital declares that whereas Baton has been diverting a quantity of water from the Cold Springs Branch at a point on the west fork above plaintiff’s point of diversion, “under claim of ownership of water flowing into said branch from the tunnel of the city of Santa Barbara in said county, and under further claim that said tunnel is a non-riparian source of said water, and whereas said party of the first part, Montecito Valley Water Company, denies the right of said party of the second part so to divert said water.” It thus appears that the water which was the subject of their composition was not water gathered by the Baton Tunnel, but water claimed by Baton and flowing from the tunnel of the city of Santa Barbara under his, Eaton’s, contract with that city. The agreement then provides that Baton will supply a flume by which the Montecito Valley Water Company shall, until the fall rains, divert from the creek all of its waters, but delivering to Baton, at his box, six inches of it. Gould during this time was to waive his right to have 1.46 inches of water turned into the creek, and the water company and Gould released Baton, not from any claim as to the damages occasioned by the Baton Tunnel, but solely “for damages on the ground of the abstraction from said west fork of any water heretofore diverted therefrom by Baton by means of said line of flumes so belonging to him as aforesaid.” And, finally, the parties seem to have been particular to preserve the status of their respective claims touching the Baton Tunnel, for it is further provided: “That nothing in this agreement shall be understood as a waiver on the part of any party hereto of any right to any water running in any part of said *599 Montecito Creek or the branches or forks thereof, except subject to the foregoing terms and agreements and during the continuance thereof and as provided therein.” The trial court construed this contract as not interrupting the continuance of defendant’s asserted prescriptive right, and in this we think its finding is supported.
It is further contended by appellant that its rights were not invaded until the tunnel actually operated to decrease the supply to which it was entitled, and that this result was reached within five years. A discussion of this would involve some mathematical calculations and an analysis of conflicting evidence. It must be sufficient to say that the conclusion of the court, that the invasion of plaintiff’s right had existed for five years, is supported.
It is last complained that the court did not find the amount of water to which the Baton Tunnel defendants were entitled under their claim of prescriptive right. The finding of the court is, that the defendants have diverted and applied to useful purpose all the water flowing from said tunnel in excess of the quantity of 1.43 miner’s inches. Plaintiff’s right, so far as this tunnel is concerned, is fixed by this finding, which, in effect and substance, declares that defendants are entitled to all the water which their tunnel carries in excess of the 1.43 inches. An omission of an additional finding as to how much water in fact the tunnel was carrying cannot injure plaintiff, since it is found that defendants were entitled to it all, as in
Fogarty
v.
Fogarty,
CROSS-APPEALS OF PLAINTIFF AND DEFENDANTS OWNERS OF THE
BARKER TUNNEL AND OF THE WATERS DERIVED THEREFROM.
The Barker Tunnel is in location intermediate between the Baton Tunnel and city tunnel, and was the second upon which work of construction was begun. Plaintiff impleaded the defendant Barker as claiming ownership in the tunnel and the waters collected by it, and certain other defendants, who for convenience may be designated the Coleman group, as claiming interests in the tunnel and its waters. The court’s findings in regard to this tunnel were, that Barker had exea *600 vated it for a distance of more than twelve hundred feet; that by a judgment between the parties the plaintiff was estopped from claiming that the first nine hundred and twenty-five feet of the Barker Tunnel abstracts any of the water from the Cold Springs Branch or its tributaries, but that it is not estopped from asserting such abstraction as to the remaining portion of the tunnel; that the remaining portion of the tunnel had abstracted and diverted, and still abstracts and diverts, two and one-half miner’s inches of water; that Barker has conducted this water away from the creek, sold it to divers persons, who have beneficially used it, for large sums of money, has not accounted to plaintiff for any of this money, nor has he returned the waters or any of them to the channel of the creek; that Barker threatens and intends to continue to divert and use the water in this manner; that the Coleman group of defendants claim, under purchase from Barker, rights to certain portions and amounts of the water flowing from the mouth of the tunnel of Barker, as aforesaid; that no part of the water developed and obtained through the Barker Tunnel, saving this two and one-half inches, is, or at any time has been, a part of the stream, or abstracted therefrom, or necessary to the protection or support thereof. The court then makes its finding, identical with finding 17, above quoted, to the effect that it cannot determine how much of this two and one-half inches, if permitted to flow by the Barker Tunnel in its natural and accustomed way, would reach plaintiff’s dam and point of diversion. Its conclusion of law and judgment upon these matters is identical with that which it rendered in the matter of the city,—that is to say, it relegated the litigants to another action, both to determine this question and to determine what relief by way of mandatory injunction, compensation, or otherwise should be accorded.
Upon the grounds previously discussed, and for the reasons previously given in the consideration of the cross-appeals of the plaintiff and the city of Santa Barbara, the judgment relegating the parties to further and future litigation must be reversed, since, as said in
Steinberger
v.
Meyer,
The Coleman group of defendants contend that their demurrer should have been sustained, and that no relief should have been awarded against them for a failure of the complaint to make it appear that they are asserting any rights in hostility to plaintiff, or taking any of the water rightfully belonging to plaintiff; but it is charged in the complaint and declared in the findings- that they have purchased from Barker certain of his alleged rights to portions and amounts of the water flowing from the tunnel, and it is further alleged that all of the water flowing from the tunnel was unlawfully abstracted from plaintiff’s supply. It is certainly true that these defendants are interested in the result of the litigation, and in the relief which may be accorded, and are therefore proper parties defendant to have before the court in this • equitable proceeding for the complete adjustment of all claims and rights.
(Randall
v.
Duff,
We have thus considered all of the propositions advanced upon the various appeals with the result here expressed.
First, that the judgment as to the Baton Tunnel defendants is affirmed.
Second, that the judgment as to the city of Santa Barbara is reversed, with directions to the trial court to determine what compensation by way of damage plaintiff! is entitled to for the unlawful abstraction of 4.16 inches of water, and to make provision against a continuance of this injury by appropriate decree, either that of a mandatory injunction requiring the restoration of the given amount of water or in some other manner which shall be meet in equity, and the court will further make provision protecting the respective parties in their rights, in the event that a further extension of the city tunnel with a further injury to plaintiff’s rights shall be threatened, in this regard having in consideration the fact that a prohibitory injunction should only be granted if any and all other forms of relief should be found in-ad equate.-
Third, as to the owners and defendants in interest in the Barker Tunnel the judgment is also reversed, with the same directions to the trial court as those set forth in reference to the city of Santa Barbara in the second paragraph hereof.
Fourth, the defendants and respondents owners of the Baton Tunnel and of the waters flowing therefrom to recover their costs; the Montecito Valley Water Company to recover its costs upon its appeals against the city of Santa Barbara and against the owners of the Barker Tunnel and of the waters flowing therefrom, and likewise to recover its costs as respondent upon the appeals of these last-named parties.
McFarland, J., Van Dyke, J., Shaw, J., Lorigan, J., and Angellotti, J., concurred.