THE COURT.
The following opinion was prepared by Commissioner Smith when the case was in Department. After further consideration we are satisfied with that opinion; and for the reasons therein given the judgment and order denying a new trial are reversed.
SMITH, C.
This suit was brought against the deceased, John Meiners, for the same diversion of water complained of in Ventura Land and Power Company against the same defendant (L.A. No. 803). The cases were tried together; and are submitted on the same briefs, and mainly on the same transcript. The question as to the riparian ownership of the defendant's testator is the same in both cases, and has been considered and determined in the other case. But in this case the plaintiff claims by virtue of an appropriation of water, and the findings and judgment are in her favor, — the amount adjudged being two hundred and thirty-one inches measured under a four-inch pressure. Such a right, however, cannot be acquired against riparian proprietors, otherwise than by prescription, which would require an adverse user of five years (Civ. Code, sec. 1007; Lux v. Haggin, 69 Cal. 376; Kinney on Irrigation, secs. 92, 293; Washburn on Easements, pp. 167-170, 181-183); and in this case the user — which commenced June 1, 1887 — was interrupted within the five years by the adverse acts of Meiners, in diverting, and continuing to divert, the water — commencing September 1, 1891. The case therefore cannot be distinguished from that of the Ventura Land and Power Company; and the decision in that case must be regarded as conclusive of this.
I advise that the judgment and order appealed from be reversed.
Rehearing denied.
Beatty, C.J., dissented from the order denying a rehearing.