than one-third of the said waters of said Bear River to which plaintiffs, and their said lands, are entitled as aforesaid." There are further findings that none of the causes of action of the plaintiffs, or any of them, is barred by the provisions of any or all of the sections of the Code of Civil Procedure specified in the answer, that the defendant Pacific Gas & Electric Company, and its predecessors in interest, have not, and never have had, any right to divert any of the waters of Bear River, the flow of which the plaintiffs have been found to be the owners of and entitled to the use of as aforesaid, and that said defendant and its predecessors in interest have not heretofore diverted from said river or used any of said waters so found to be owned by the plaintiffs and have not acquired any right to do so, and that as to said defendant the right of the plaintiffs to the water so found to be owned by them is paramount to any right thereto of said defendant; that the United Water and Power Company, and its predecessors in interest, have never, through the Miners Ditch or otherwise until 1910, diverted any water adverse to the rights of the plaintiffs to the water of which the plaintiffs are found to be the owners as aforesaid, and that said defendant is not the owner nor in the possession of any right to divert from said river during the irrigating season of any year any of the waters thereof so found to be owned by the plaintiffs.

The judgment makes no provision as to the use or diversion of water except during the months above named. It declares merely that the plaintiffs have the right to the continued flow in Bear River, every year, at their eastern boundary, during the months above named, of the quantities of water stated in the findings as flowing in said months at said boundary, and that the defendants be enjoined from diverting any water from Bear River "at any time when the waters flowing in said Bear River at said easternmost boundary of plaintiffs' said lands, in any year at any time during the months of April, May, and June, shall be less than four thousand inches; during the month of July, less than three thousand inches; during the month of August, less than twenty-two hundred inches, and during the months of September and October, less than two thousand inches."

The several claims of the defendants to the ownership of the above-described water rights are supported by evidence similar in character. A statement of that relating to the

diversion at the Bear River Dam aforesaid will illustrate them all sufficiently for the purposes of this decision. The Bear River Dam and the flumes and ditch leading therefrom, now owned by the Pacific Gas & Electric Company, were constructed about the year 1852. They have been maintained and operated continuously, without substantial change, from that time down to the time of the alleged diversions of water from Bear River by the defendants in 1910. This was done by the successive predecessors in interest of the Gas Company, the South Yuba Water Company being in the ownership and control from the year 1890 until December 31, 1910. The Bear River Canal, at its head, is of a size sufficient to carry more than one thousand five hundred inches of water. The lowest estimate of its capacity made by any witness was 1,520 miner's inches. At least that quantity of water has been diverted from the river by means of said dam and canal by the predecessors of the Gas Company, and put to public use for beneficial purposes continuously during the above-named months of each year prior to 1910, for many successive periods of five years, whenever there was enough water of the river there flowing to fill the canal, and when there was less flowing all was diverted. It is not questioned that this diversion and use, whatever the quantity, was made under a claim of right to do so. This diversion and use was continuous for so many years, was so openly made, so notorious and embraced so large a portion of the waters of the stream and extended over so wide a territory, that it could not be, and is not, contended that the plaintiffs and their predecessors in interest were without knowledge thereof, if such knowledge were necessary to the inception of the period of limitation and prescription. There was no substantial conflict in the evidence with respect to these facts.

The taking of the 1,520 inches of water from the river diminished its flow to that extent below the dam down to the plaintiffs' lands. As the plaintiffs were then entitled to the full flow of the stream by their lands, this taking was an invasion of their rights, whether they used the water, or any part thereof, on their lands or not, and regardless of the fact that the water remaining in the stream may have been sufficient for their needs and uses. It was therefore adverse to plaintiffs' rights, and a continuance thereof for five years established in the predecessors in interest of the Gas Com

pany a perfect right to continue the diversion of the quantity so taken. (Moore v. Clear Lake W. W., 68 Cal. 146, 150, [8 Pac. 816]; Gallaher v. Montecito etc. Co., 101 Cal. 242, 244, [35 Pac. 770]; Anaheim etc. Co. v. Fuller, 150 Cal. 327, 335, [11 L. R. A. (N. S.) 1062, 88 Pac. 978]; Gould v. Eaton, 117 Cal. 539, 543, [38 L. R. A. 181, 49 Pac. 577]; Stanford v. Felt, 71 Cal. 250, [16 Pac. 900].) This right was thereafter held by a perfect title in fee, good against all lower riparian proprietors, including the plaintiffs. (Arrington v. Liscom, 34 Cal. 365, 381, [94 Am. Dec. 722]; Cannon v. Stockmon, 36 Cal. 535, 540, [95 Am. Dec. 205]; Alhambra etc. Co. v. Richardson, 72 Cal. 598, 600, [14 Pac. 379].) Under the evidence, therefore, the South Yuba Water Company, on December 31, 1910, when it conveyed its water rights to the Gas Company, held a complete and perfect title to the right to divert at Bear River Dam the quantity of water which had been there diverted continuously for so many years. Its conveyance transferred that right and title to the Gas Company. This right was therefore established by the evidence, and the findings that plaintiffs' causes of action were not barred by the statute of limitations and that the right of the plaintiffs to have flow at their lands in Bear River and to use the amounts of water above specified, during the months stated, is paramount to the right and title of the Gas Company, are contrary to the evidence, so far as this prescriptive right and title, and others of like origin and character and sustained by like proofs, are concerned. The plaintiffs' causes of action are barred with respect to these prescriptive rights. These include the diversions at Gold Hill Dam, at the Bear Valley Dam, and at the Head Dam of Miners Ditch, each of which is in pursuance of a prescriptive right as well sustained by the evidence as that at Bear River Dam.

The fact that the defendants, by means of new and more perfect dams, and by repairs to the canals, completed within three years prior to 1911, were enabled to and did, in the year 1910, divert more water than before, did not affect the rights to continue to divert the quantity which they had previously acquired the right to divert. And if a small part of the water so taken into the canals at said dams has always escaped from the canals through leaks in the flumes and thus has been returned to the stream below, this does not deprive defendants of the right to the quantity actually kept out of

the stream. It would only diminish by that much the quantity which they are entitled to continue to divert by reason of the taking at the dam. It would not affect the right to the remainder after allowing for these leakages.

In an action by the riparian owner to establish his riparian rights, an answer by the defendant that the action is barred by the statute of limitations, by reference to the appropriate section of the Code of Civil Procedure, is a sufficient pleading of the prescriptive right to the quantity of water claimed by the defendant, and justifies the taking of evidence and the making of findings with respect to such prescriptive right. (Alhambra etc. Co. v. Richardson, 72 Cal. 598, 600, [14 Pac. 379]; Churchill v. Louie, 135 Cal. 608, 610, [67 Pac. 1052].) Consequently, the court should have made findings relating to these several claims of water rights by the defendants, notwithstanding the general character of the answer. The proper form of a judgment in such a case would be to declare the right of the respective defendants to make the diversions of water from Bear River to the quantity as to which the prescriptive right was found to be established and to permit them to continue the diversion of such quantity, but to enjoin them from making any greater diversion of the water of the river by means of improved dams or canals or otherwise. It would appear that the court endeavored to accomplish this object by declaring that they should make no diversion whatever when the water flowing at the plaintiffs' land was less than the quantities designated in the judgment during the respective months of the irrigating season. This, in effect, would allow the respective defendants to continue their respective diversions so long as the quantity flowing by the plaintiffs' land was not reduced thereby below the quantities specified. The objection to this form of judgment is that it puts upon the defendants a burden which the law does not attach to their prescriptive rights. The defendants' rights were positive as to quantity and they existed regardless of the effect on the stream below. The owner of a prescriptive right thus acquired is under no obligation to go below to ascertain or inquire whether those who there have rights in the water are receiving the usual quantity or not. His right is absolute. The consequences of his diminution of the stream must be suffered by those below. Under the judgment in this case the defendants could not safely divert the quantity of

water to which their prescriptive rights extend without first ascertaining each day that such diversion would not reduce the stream at plaintiffs' land below the minimum quantity established by the judgment. Of necessity this would be very difficult, if not impossible. All diversions and uses by riparian owners and others in the intervening space, seventeen to fifty miles, must be taken into the account. Also the state of the weather and of the atmosphere, the possibility of rain to vary the flow of the stream and the losses by seepage in the stream as depleted compared with its loss if not diminished. The right which the defendants had acquired is a right to take a positive quantity continuously, and it is not burdened by any such duties or obligations as would be imposed upon it by this judgment.

There is no force in the claim that the evidence is too indefinite and uncertain to support findings as to the quantity of water covered by the prescriptive right at the several dams. It is true that the transcript indicates that little importance was attributed to this point. Apparently it was obscured by other matters during the trial. But there was evidence with respect to each of the diversions, showing the capacity of the several canals and the quantity of water carried therein, that is, that they were run full when there was water enough and that when there was less all the water was diverted. The fact that witnesses differed in their evidence. as to the capacity did not relieve the court of the duty of finding the facts. In proving a prescription the evidence must relate to conditions and acts occurring at a period many years before the trial, and it is seldom harmonious in the details. It is the duty of the court to compare and weigh such evidence and to reach a conclusion thereon as to the truth, according to its best judgment. A continuous adverse diversion and beneficial use of a given quantity for a single period of five years establishes the title to that quantity. The proof need not extend over the whole period from the beginning of the diversion to the beginning of the action. A failure of proofs as to some intervening period would not defeat the defendants' claim.

The important principle in the case, we may, in conclusion, repeat, is that the rights of the defendants in the stream, with regard to quantity of water, are not to be measured by