the filing of the complaint had been, the owners and in possession of the rancho Laguna de Tache, containing fortyeight thousand acres of land, and other lands adjacent thereto, described by legal subdivisions, and that said rancho was granted to Manuel Castro by the government of Mexico in the year 1846, and that a patent for the same was duly issued by the government of the United States to the predecessors and grantors of plaintiffs in the year 1866; that plaintiffs are the owners of a large number of horned cattle and other live-stock, which they have kept and maintained, and do now keep and maintain, on said lands; and that said cattle and live-stock are dependent upon the grass and herbage which grow upon said lands for food, support, and maintenance; that said lands are used as a stock range, and are of great value to plaintiffs for that purpose. A certain large natural watercourse called Kings River from time immemorial has flowed, and but for the wrongful acts of defendant in the amended complaint specified would still continue to flow, by and through said lands. There is a certain natural branch of said Kings River which was formerly known as Arroyo de Holancos, but now called Cole Slough, which now receives, and always has received, its supply of water from said Kings River. The channel of Cole Slough is located wholly within the boundaries of said lands. Cole Slough from time immemorial has flowed, and but for the wrongful acts of the defendant would still continue to flow, through said lands.

Kings River and Cole Slough have heretofore furnished, and but for the wrongful acts of defendant would still furnish, the cattle and live-stock of plaintiffs with water to drink, and but for the wrongful acts of defendant the waters of Cole Slough and Kings River would overflow, irrigate, seep through, wet, and moisten said lands, and greatly increase the fertility thereof, and cause said lands to produce a large and valuable quantity of grass and herbage,

upon which plaintiffs' cattle would feed and fatten. fendant is a corporation, and prior to the

De

day of Sep

tember, 1881, it dug and constructed a large ditch or canal leading out of the channel of Kings River at a point near Hazelton's house, about twenty-seven miles above and distant from the point on the channel of said Kings River at which said Cole Slough receives its supply of water, and on the day of September, 1881, defendant, without the consent of plaintiffs, or their grantors, or either of them, constructed a large dam in the bed and channel of said Kings River, immediately below the place where said ditch or canal leads out of said Kings River, and by means of said dam and ditch, said defendant, at various times since said date last aforesaid, has diverted, and still does divert, from the channel of said Kings River a large quantity of water, which of right ought to have flowed, and but for the wrongful acts of said defendant would have flowed, down to and through plaintiffs' said lands, and would have overflowed, irrigated, seeped through, and moistened said lands, and increased their fertility, and furnished water for plaintiffs' cattle and live-stock to drink. It is further alleged that the diversion of water from Kings River by defendant has deprived plaintiffs' lands of the benefit of the flow of said water, has caused said lands to fail to produce their usual and accustomed crops of grass, and has deprived, and now deprives, plaintiffs' cattle and live-stock of water to drink; that the diversion of water from Kings River by defendant, during the one year immediately preceding the filing of plaintiffs' original complaint, has caused plaintiffs great loss and damage, in that said lands, by reason of the diversion of said water by defendant, have failed to produce their usual and accustomed crop of grass and herbage, and such crop has become wholly lost to plaintiffs, to their damage in the sum of twenty-five thousand dollars; and during the said one year plaintiffs' cattle and livestock have perished and died for want of said water to

drink, and for lack of said grass to eat, to the damage of plaintiffs in the sum of ten thousand dollars. It is further alleged that the defendant has threatened, and still does threaten, to continue to divert the water from said Kings River by means of said ditch and dam, and unless restrained by a decree of the court, defendant will continue to divert and turn away from the channel of the river the waters thereof, to such an extent as to completely drain said channel, and finally change the course of said stream, and thereby deprive plaintiffs' lands of the flow of said water, and plaintiffs' cattle and live-stock will be deprived of water to drink, whereby plaintiffs will suffer great and irreparable loss and injury, and that such loss and injury will be continuous; and compensation therefor cannot be adequately obtained in an action at law for damages, etc. The prayer is for thirty-five thousand dollars damages, and a decree adjudging said dam to be a nuisance, and that the defendant be ordered to remove and abate the same, and that the court issue its permanent injunction restraining defendant from maintaining any dam or obstruction. in the channel of said river, or diverting any of the waters thereof.

The defendant filed a demurrer to the amended coinplaint, which was overruled, and thereafter defendant filed what it denominated "an answer to the amended complaint and cross-complaint." A demurrer was interposed to the so-called cross-complaint, which was sustained by the court. The answer and cross-complaint set up an alleged appropriation of the waters of the stream, and the statute of limitations. tried by the court sitting without a jury; written findings of fact were filed, upon which judgment was entered for plaintiffs. Defendant's motion for a new trial was denied, and thereafter it appealed from the final judgment, and from the order denying its motion for a new trial. The further facts are stated in the opinion of the court.

The cause was

H. S. Dixon, and Flournoy & Mhoon, for Appellant.

Brown & Daggett, for Respondents.

The COURT.-Many of the questions involved in this appeal have recently been determined adversely to the contentions of appellate herein. It is therefore unnecessary to notice them further. (Heilbron v. Fowler Switch Canal Co., 75 Cal. 426; Heilbron v. Last Chance Water Ditch Co., 75 Cal. 117; Heilbron v. Centerville and Kingsburg Irrigation Ditch Co., ante, p. 8.)

1. The defendant's motion for leave to file an amended answer was addressed to the sound discretion of the court, and it appears from the affidavit filed in support of the motion that the matters set out in the amended answer were not substantially different from those which had already been pleaded in the answer on file. The court denied the motion, on the ground "that said matters of amendment are sufficiently pleaded in the original answer to the amended complaint." We think, therefore, that the court did not abuse its discretion in refusing to allow it to be filed. The defendant seems to have been given the benefit of the matters alleged in his original answer and proposed amendments.

The demurrer to the cross-complaint-so calledwas properly sustained. The cross-complaint contained nothing which had not already been set out in the answer filed. Furthermore, the action is one for tort, and no affirmative relief could be granted. (McDougall v. Maguire, 35 Cal. 274.)

3. No specifications of the insufficiency of the evidence to support the first, second, third, fourth, fifth, or sixth finding of fact are made in the statement on motion for a new trial. The facts therein stated, therefore, cannot be controverted.

4. The findings of the court upon the question of adverse use are against the defendant on every element necessary to a title by prescription, and are, we think,

supported by the evidence. The question is not whether this court would, upon the same evidence, find the facts as they are found by the court below. It is sufficient to say that there is a substantial conflict. There is nothing to show that Clark or his tenants had knowledge or notice of the diversion of water through defendant's ditch. The most that can be said is, that the evidence, taking into consideration all presumptions, is conflicting upon that question. Diversion of water by the defendant took place at a point nearly thirty miles above the lands. of plaintiffs' ranch, on the land of a riparian proprietor. It was not incumbent upon Clark or his tenants to take notice of what was going on at that distance above their property, to ascertain whether any one was diverting water from the channel of the river. There is evidence in the record tending to show that the diversion of water from Kings River was a matter of notoriety in the vicinity of plaintiffs' ranch prior to August, 1877, but it is confined to diversions made by other ditches than that of the defendant. There was also evidence tending to show that the diversion of water by the defendant had not been continuous and uninterrupted for five years before the commencement of this action. The court found such to be the fact. Upon this topic there was also a substantial conflict in the evidence.

5. The findings of the court are not outside of the issue upon the question of ownership. The plaintiffs are tenants, and not owners in fee; but they have the right to the exclusive possession and use of the property and all its appurtenances, and have the right to maintain an action for any injury which interferes with their possession or the use and enjoyment of the property. In Lux v. Haggin, 69 Cal. 436, it was said: "When water is diverted from land an injury is done to the possession. Ordinarily it is sufficient if the plaintiff shows that he has possession against a mere wrong-doer. . . . . The plaintiff