It is alleged that the plaintiffs, other than the corporation, are the owners of lands bordering on the stream, that, as such landowners, they have the right to take three fourths of its waters, flowing above and below the surface of the ground, for use on their lands in proportion to the area of the respective holdings; that the corporation was organized for the purpose of diverting said waters from said stream and distributing them to the plaintiffs and other persons entitled thereto, that it has constructed works, pipes, and ditches for that purpose, and is now engaged in said diversion and distribution; and that the defendants claim adversely the waters to which the plaintiffs are entitled and, without right, are taking and using said waters, to the plaintiffs' injury.

The lands comprising the La Cañada Ranch and the San Rafael Ranch in Los Angeles County were, prior to 1871, held in common ownership by a number of persons. The two ranches adjoined, La Cañada lying north of San Rafael. In that year, in an action between them for that purpose, a partition of the two ranches was made by judicial decree. Verdugo Cañon begins near the base of Sister Elsie Mountain in La Cañada Ranch, and extends from thence southerly across the line between the two ranches and for several miles into the San Rafael Ranch, where, after passing through a rather narrow gorge, it opens or expands into a wide plain forming part of what is usually known as the San Fernando Valley. The floor of the cañon is comparatively level and varies in width from about seven hundred feet to something over eighteen hundred feet, with high hills or mountains on each side. In these mountains are a number of side cañons in which small rills flow, the water sinking in the ground, either before or immediately after reaching the floor of the cañon. During times of heavy rain, and for a few days afterward, a stream of water flows down the cañon, through all the lands in controversy and into the Los Angeles River, some distance below. This is of infrequent occurrence, and as it has no particular bearing upon the questions presented, no further consideration need be given to it.

At the time the partition decree was made, three streams arose in the cañon, within the San Rafael Ranch, and flowed for some distance separately, and then united and flowed for some distance on the surface down the cañon, finally sinking

in the sand and gravel. These streams oozed out of the loose material composing the bed of the cañon at three places nearly of the same level or altitude, almost on the same line extending laterally across the cañon, and near the northerly line of the Cañon tract hereinafter mentioned. One arose near the east side and somewhat further up the cañon than the other two. It is called the "east-side stream." The other two arose nearer the western side, and united in a single stream before joining with the east-side stream. The stream composed of these two is called the "west-side stream."

In partitioning the ranches the waters of these streams were apportioned among and set apart to certain of the lands assigned in severalty. A tract of 2629.01 acres, much of it unfit for irrigation, was set off to the defendant Teodoro Verdugo. It embraces the entire cañon from the narrows for several miles toward the north and includes the places whereon the aforesaid streams arose to the surface. It will here be designated as the "Cañon tract." The east-side stream, so far as required, was set apart to the Cañon tract for irrigation and other uses thereon. The combined west-side stream and any surplus of the east-side stream remaining after the Cañon tract was supplied therefrom, were set off to a large body of land situated on the plain below the narrows, for irrigation and other uses thereon. These lower lands covered an area of about three thousand three hundred and thirty-three acres, and were generally fit for irrigation. They were divided and set off in severalty in tracts of various areas to twenty-one different owners. For convenience of designation the west-side stream was divided into ten thousand parts. It was apportioned to the land at the ratio of three ten-thousandths of the water to each acre of the land. A large part of this three thousand three hundred and thirtythree acres was afterward subdivided and sold in smaller tracts, each having its proportionate share of the waters originally assigned. The plaintiffs are the owners of about three fourths of the land to which this water was assigned, and the defendants C. E. Thom and E. M. Ross, respectively, each own about one eighth thereof. The land of the plaintiffs, collectively, is entitled to three fourths of this water and that of Thom and Ross, respectively, to one eighth thereof. The Verdugo Cañon Water Company diverts

this water for all the interested parties, including Thom and Ross, by means of dams and diverting works, to the expense. of which Thom and Ross contributed one eighth each. Their shares of the water are delivered to their respective pipes near the diverting works. The defendant E. M. Ross has also become the owner of several hundred acres of land of the Cañon tract and has an orchard of about one hundred acres thereon, upon which he uses water from the east-side stream for irrigation.

In 1871, and for years thereafter, there appears to have been sufficient water in the streams for all the uses to which it was then applied by the persons entitled thereto. As years passed, the area of land set out to orchards, vineyards, and other fruits by the plaintiffs and defendants was very much increased, and the orchards of citrus fruits also required more and more water as they grew older, so that about the year 1891 the water began to be insufficient. In the year 1893 a series of dry years began, and they continued until 1902, when the present action was begun. From the increased demand and the decreased supply the result has been that during and after 1893 the water naturally flowing on the surface was not enough to keep alive and properly nourish the trees and plants on the land entitled to share in it. From time to time the parties, or some of them, increased their individual supply of water by sinking wells deep in the strata of sand and gravel underlying the bed of the cañon and the plain below, and pumping water therefrom. For a like purpose, in 1894, the Verdugo Cañon Water Company and the defendants C. E. Thom and E. M. Ross jointly purchased about eight acres of land, part of the Cañon tract, situated at the head of the narrows, and extending across the cañon from the west wall towards, but not quite reaching, the east wall thereof. Upon this tract, at joint expense, in the proportion of three fourths to the company and one eighth each to Thom and Ross, they have constructed what is called a submerged dam, part of its length consisting of a cement wall and part of wooden cribs, by which the water flowing underground in the sand and gravel of the cañon is collected and diverted, and this water has ever since then been distributed to the respective parties along with the surface flow of the west-side stream, and in the same proportion.

This dam, so far as it has been constructed, is about five hundred feet long, including the cribs. Further construction thereof ceased in 1896. For many years past all the waters of the east-side stream have been used on the Cañon tract, and there has been no surplus therefrom to add to the waters of the west-side stream.

In 1898 E. M. Ross sunk a well in the cañon at a point about one thousand feet above the submerged dam, and near the east side of the cañon, in lands constituting a part of the Cañon tract. The well was completed in March, 1899, and in May, 1899, he began pumping, and has ever since then, during the irrigating seasons, pumped therefrom a stream of water averaging a flow of eighteen miner's inches flowing under four-inch pressure. He has used this water on land in the Cañon tract, and also on other lands, and he claims the absolute right to use it on any other land, as he pleases, without regard to the effect on the amount of water collected by the dam, or flowing in the west-side stream. In 1897, Teodoro Verdugo sunk a well in the cañon and placed a pump therein some two miles above the dam and near the point where the streams formerly rose to the surface, which he began to pump in the spring of 1898, and from which he has ever since, during the irrigating seasons, pumped a stream of about thirty-five miner's inches of water, which he has used to irrigate lands in the Cañon tract, claiming the right to do so. The defendant C. E. Thom also has three wells near, but above, the Verdugo well, from the easterly one of which he claims the right to pump water for irrigation of his land below the dam, or of any other land, but no water has been pumped therefrom. Thom and Ross have each put down wells in the cañon, at a point about one thousand five hundred feet below the dam, from which they each pump water to irrigate land of the San Rafael Ranch below the dam and entitled to water from the west-side stream under the decree, and each claims the right to continue to do so. These several diversions of underground water by the defendants for their exclusive use, and these claims of right to do so, occasioned this suit.

1. The partition decree did not change the character of the rights of the respective parties to the waters of the cañon. It created no new rights or estate therein, but merely

divided and apportioned the pre-existing rights and estates. Prior thereto the lands were in one common ownership, and the part of the San Rafael Ranch here involved was all riparian to that stream. Its waters were therefore not merely appurtenant thereto, as a right acquired by prescription, or appropriation, would be, but were a part of the land itself, as parcel thereof. This was the case with respect to each of the three surface streams then flowing, and also with respect to all the underground flow which constituted a part of said streams. In making the partition of these waters the right to the use of the surface streams, which previously attached to the entire ranch, was completely severed from the other parts thereof and transferred to the lands to which water was assigned. The right thus assigned to each tract by the partition was a riparian right and it continues to possess that character, with all its attributes, since the partition as fully as before.

With respect to the two surface streams, known as the east-side stream and the west-side stream, respectively, the partition effected a complete separation of the waters, the east-side stream being given, so far as necessary, and for many years past this has meant all of it, to the Cañon tract exclusively, and the west-side stream exclusively to the lands below the mouth of the cañon. The water of this west-side stream was not actually separated among the owners of the several tracts. It was merely apportioned between them, giving to each in common a certain number of undivided shares of the whole.

It is obvious that the continued presence in the soil, sand, and gravel, composing the bed of the cañon, of a sufficient quantity of water to supply and support these surface streams in their natural state, is essential to their existence and preservation, and that the parties have as clear a right to have this quantity remain underground for that purpose as they have to the stream upon the surface. Neither party should be permitted to decrease this necessary quantity of underground water to the depletion of the surface stream and the injury of those to whom it has been assigned. This much is clear from the previous decisions of this court. (Los Angeles v. Pomeroy, 124 Cal. 621, [57 Pac. 585]; McClintock v. Hudson, 141 Cal. 280, [74 Pac. 849]; Cohen v. La Cañada Co., 142