
    WALSH et als. v. HARRIS et als.
    
    In an action for damages for the diversion of water from the plaintiffs’ ditch, the defendants denied the diversion, and alleged that the water used by them was used by agreement between the Volcano Water Company and themselves, and the water came from the reservoir of the Volcano Water Company. On the trial, after the plaintiffs had introduced in evidence the judgment wherein the right to the use of the water had been adjudged between the plaintiffs and the Volcano Water Company, and offered to prove by oral testimony that the water used by defendants is the same water that was in controversy in that suit: Held, that such evidence was proper, and should have been admitted, as there was no other means than by parol of establishing this fact.
    Appeal from the District Court of the Fifth Judicial District, County of Amador.
    This was an action to recover damages for the diversion of water by the defendants from the plaintiffs’ ditch, and for an injunction to restrain defendants from a continuation thereof. Plaintiffs were incorporated under the name of the “ Sutter Creek Water Company,” and claimed the waters of the north branch of Sutter Creek, in the county of Amador.
    The defendants owned a mining-claim, and claimed that the water used by them for the working of their claim, leaked through the dam, or reservoir, of the Volcano Water Company, and was used and appropriated by them in pursuance of an agreement with the “ Volcano Water Company.”
    The case was tried before a jury. On the trial, the plaintiffs introduced and read in evidence the judgment in the case of the Sutter Creek Water Company v. The Volcano Water Company, wherein the right to the use of the water had been adjudged between the plaintiffs and the Volcano Water Company, under whom the defendants claimed. Plaintiffs then offered to prove by parol that the water in controversy in that suit was, and is, the same water now in dispute between the parties to this_ suit, which evidence the defendants objected to, and the Court sustained the objection and refused to allow the evidence to to go the jury. Plaintiffs excepted. The jury returned a verdict for the defendants, plaintiffs moved for a new trial, which was denied, and they appealed to this Court.
    
      Robinson, Beatty, and Heacock, for Appellants.
   Baldwin, J., delivered the opinion of the Court

Terry, C. J., concurring.

Suit in May, 1856; judgment in October, 1856.

The Court erred in refusing to admit testimony offered by plaintiffs to show that the water alleged in this suit is the same water for which a recovery was had in former cases between the present plaintiffs and the parties under whom the defendants claimed. There was no other means than by parol to establish this fact; and for this error the judgment is reversed, and cause remanded.  