[Civ. No. 1407. Third Appellate District.-December 13, 1917.] CHARLES Y. HEPLER et al., Respondents, v. C. E. WRIGHT et al., Appellants.

APPEAL-ALTERNATIVE METHOD-RECORD.-Where an appeal is taken under the alternative method, and neither party prints in his brief such portions of the record as he desires to call to the attention of the appellate court, the typewritten transcript will not be examined. WATER RIGHTS-SUFFICIENCY OF FINDINGS.-In an action to determine water rights, for an injunction and damages, a finding that plaintiff's predecessors in interest did not appropriate all the waters of the stream carrying ten and seventy-five one-hundredths inches of water, and that such predecessors appropriated six inches, while lacking in definiteness, impliedly shows that defendants are entitled to the difference between the plaintiff's appropriation and the total flow.

APPEAL from a judgment of the Superior Court of Plumas County, and from an order denying a new trial. J. O. Moncur, Judge.

The facts are stated in the opinion of the court.

H. B. Wolf, and L. N. Peter, for Appellants.

M. C. Kerr, for Respondents.

CHIPMAN, P. J.-Plaintiffs bring the action to have their right determined to six inches of water measured under a four-inch pressure, for an injunction restraining defendants from diverting the same or any part thereof, and for damages in the sum of five hundred dollars for defendants' alleged interference therewith.

It is alleged in the second amended complaint that plaintiffs Charles and Emma Hepler now are and for more than twenty years last past have been the owners of and have occupied, used, and farmed certain lands, to wit, lots 2 and 3 of block 7 of the town of Crescent Mills, Plumas County, California. That the said plaintiffs last named and plaintiff Kelley are the owners and for more than twenty years last past they and their predecessers in interest have been the owners, in possession, and occupying lot 1 of block 7 aforesaid. That plain

tiff's Charles and Emma Hepler are in possession and entitled to the possession of said lot 1, and are farming the same under lease with their said co-owner, and are the owners of all the crops now grown on said lands or to be grown thereon. That plaintiff Kelley has no interest therein. "That all of said lands are agricultural in character and irrigation is necessary on all of the said lands." That by means of irrigation, plaintiffs Charles and Emma Hepler for more than seven years last past have raised and produced and are now raising and producing on all of said lands valuable crops of fruits, vegetables, hay, and other crops. That the irrigating season for said lands is from April 1st to and including October 1st of each year, and "irrigation is necessary on said lands during all of said time." "That a stream of water flows from what is generally known as and called the Green Mountain No. 6 Tunnel . . . carrying during the irrigating season, about eleven inches of water, measured under a four-inch pressure." It is then alleged "that more than twenty years ago, the predecessors in interest of the plaintiffs went into and upon said stream and appropriated six inches of water, measured under a four-inch pressure, and erected dams across said stream and dug ditches leading from said stream to and upon the lands of plaintiffs herein; and by means of said dams and ditches diverted from said stream said six inches of water, measured as aforesaid, to and upon the lands of said plaintiffs as described in . . . this complaint; that said six inches of water was and now is divided and used upon said above-described lands in the following amounts and proportions: Upon lots 2 and 3 of block 7 of said town of Crescent Mills herein before described: four inches of water measured under a four-inch pressure; upon lot 1 of said block No. 7 . . two inches of water, measured under a four-inch pressure. That all of said water was and is used on said lands for irrigating, for domestic purposes and for watering stock, and said water and the whole thereof ever since has been and now is necessary for said purposes on said lands in the proportion and to the extent above set forth." That prior to the commencement of this action, and at the commencement of the action and ever since, Charles and Emma Hepler have been and now are entitled to the possession and the use of the flow of said waters to the extent aforesaid, and they are now using said water on said lands. That

on or about April 23, 1913, defendants, acting in concert and with a common purpose, diverted all of the waters flowing in said stream away from the lands of the plaintiffs herein and prevented any of the said waters from flowing to the plaintiff's lands, except when such diversion was interfered with by plaintiffs, and defendants do now threaten to divert and conduct all of said waters away from plaintiffs' lands and will do so unless restrained by this court. That the crops growing on said lands are in such a state of cultivation and growth that if the flow of water to plaintiffs' lands be interfered with by defendants and diverted from plaintiffs' lands, the said crops will be "stunted in growth and utterly destroyed and the damage accruing to said plaintiffs . . will be irreparable and of such a nature that the exact amount thereof cannot be accurately measured." Alleges the insolvency of defendants and their inability to respond in damages. Alleges that plaintiffs Charles and Emma Hepler, by reason of the said diversion of said waters by defendants, have been deprived of the beneficial use of the same, and have sustained damages thereby in the sum of five hundred dollars, but that plaintiff Kelley "has no interest in any of the crops now upon said lands and has not been damaged by said diversion, and does not claim any damages therefor." It is further alleged "that the defendants claim and assert some right or interest in and to the waters of said stream to the extent of six inches measured under a four-inch pressure, so used and appropriated by plaintiffs and their predecessors in interest, adverse to said plaintiffs, but that said claims of said defendants are, and each of them is, without any right or title what

soever.

The plaintiffs pray for an order of the court restraining defendants and their agents "from diverting from said stream any of the waters thereof to the extent of six inches, measured under a four-inch pressure, and to forthwith desist from diverting or attempting to divert any part of said six inches of water, measured as aforesaid, away from the lands of plaintiffs. . . That plaintiffs have a judgment and decree of this court that they are the owners of, in the possession of, and entitled to the possession of the aforesaid waters to the extent of six inches, measured under a four-inch pressure and measured and divided as set forth herein, and are entitled to have the same flow to, upon, and across plaintiff's

said lands, there to be used for irrigating, domestic purposes, and for watering stock; and that the defendants have no right or interest in and to said six inches of water or any part thereof. That plaintiffs Charles Y. Hepler and Emma K. Hepler recover from the defendants the sum of five hundred dollars as damages," and to such other relief as is agreeable to equity.

A general and special demurrer to the second amended complaint was overruled and defendants answered. They deny either directly or upon information and belief substantially all of the material averments of the complaint. Admit that on or about the twenty-third day of April, 1913, they, "with unity of purpose and by concerted action, diverted all the waters flowing in said stream away from the lands of plaintiffs herein." Admit that they did, at the date of the commencement of the action, threaten to divert and conduct all of said waters away from the lands of plaintiffs; admit that defendants claim and assert right to and interest in the waters of said stream to the extent of six inches measured under four-inch pressure, but deny that such amount was used or appropriated by plaintiffs or their predecessors or otherwise, but deny that claims of defendants are without right. "On the contrary, defendants allege that more than twenty-five years ago, their predecessors in interest, under and by virtue of an agreement made and entered into to and with the Green Mountain Mining Company, the then owner of what is known as No. Six Tunnel, . . . constructed a ditch by means of which all of the water flowing from said tunnel was diverted away from said tunnel and to and on the lands of defendant Frohlich herein, and there and on other lands used for household, domestic and irrigation purposes, and that such use on said other lands was with the consent of the predecessors of defendants and under an agreement with them."

It is alleged as a further defense that the predecessor in interest of defendant Frohlich, more than twenty-five years ago, and prior to any use of the waters hereinafter mentioned and described, by any person whomsoever for household or domestic uses, went in and upon said Green Mountain tunnel and constructed a ditch therefrom leading to and on certain lands situated as described in the answer, and there used the same for household, domestic, and irrigation purposes, and

upon information and belief it is alleged that each and every year since the date of the appropriation of said water as aforesaid and the construction of said ditch by defendant Frohlich's predecessor said water, and the whole thereof, flowing from said No. 6 tunnel has been conveyed through said ditch on to the lands of the predecessor of said defendant Frohlich and to other lands adjacent thereto, and there used for household, domestic, and irrigation purposes. Alleges, further, that on information and belief plaintiffs Charles and Emma Hepler for about seven years last past have been taking and using water from said ditch without the knowledge and consent of the predecessor of defendant Frohlich, and by stealth, and that at all times when the said defendant Frohlich's predecessor discovered such use by plaintiffs he returned all of said water into said ditch and stopped and prevented such use thereof. As a further defense, defendants allege that prior to April 22, 1913, and at a time when defendant Frohlich was negotiating the purchase of said water and said ditch and the whole thereof, together with certain land described, at the house of one Roedde, defendant Frohlich communicated to plaintiff Charles Hepler the fact of his said contemplated purchase, and said Hepler was then and there asked if he had any interest in the waters flowing in said ditch or from said lower No. 6 tunnel, or whether he claimed any interest in the same, and he, the said Hepler, then and there stated that he did not own or claim to own any interest in the waters flowing in said ditch or from said tunnel, and that he had a water right of his own for his said lands. That "thereafter defendant Frohlich purchased from and of W. F. Roedde said lands, together with said water right and said ditch line." And for a further defense, alleged on information and belief that neither of said plaintiffs has ever made any claim in any manner to W. F. Roedde of any right to divert any of the waters flowing from said No. 6 tunnel, and that plaintiffs have secured water for irrigation purposes on their said lands from springs situated within said lands and "from what is known as the Dixie Canyon ditch leading from Dixie Creek, over and across said lands." Defendants pray that plaintiffs take nothing by their action, "and for such other and further relief as to the court may seem meet."

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