
    [No. 12618.
    In Bank.
    February 26, 1889.]
    MARINDA WOOD, Respondent, v. LORENZO PENDOLA, Appellant.
    Appeal prom Judgment—Review of Findings. —When an appeal is from the judgment only, and the ultimate facts found support the judgment, the evidence cannot be considered to ascertain the significance of certain probative facts found, if, as they appear in the record, there is nothing to show that the ultimate facts were entirely based upon the probative facts or controlled by them.
    Trespass—Diversion of Water — Pleading — Conclusion of Law—. Findings. — When acts of trespass charged in the complaint in respect' to the diversion of water are not denied in the answer, defendant relying upon a denial that they were wrongful or unlawful, findings as to the title and prior right to the water in favor of the plaintiff are conclusive of the contention made as to the trespass.
    Appeal from a judgment of the Superior-Court -of Calaveras County.
    The facts are stated in the opinion of the court.
    
      Frank W. Street, and Ira H. Reed, for Appellant.
    
      Reddick & Solinsky, for Respondent.
   Paterson, J.

The appeal from the order denying a' new trial has been dismissed. (77 Cal. 82.) The case is before us now to be heard only on the judgment roll.

The action is to restrain defendant from obstructing the flow of the waters of Coyote Creek into plaintiff’s ditch, to the extent of forty inches, measured under a four-inch pressure. Plaintiff claims to be the owner of a certain ditch, known as the Stranahan or El Dorado ditch, and a certain water right. She charges defendant with having diverted and turned all the waters of the creek into ditches owned by the defendant, thereby preventing the same from reaching her ditch.

The pleadings present four issues: 1. As to the ownership of the ditch referred to above, and the water right appurtenant thereto; 2. Whether this water right is owned by the plaintiff or defendant,—whether plaintiff’s right is prior to the water rights claimed by defendant; 3. Whether the Stranahan ditch or -water right has ever been abandoned; and 4. Whether there have been acts of diversion as claimed by plaintiff. Upon all of these issues the court below found the facts and determined the questions in favor of the plaintiff, and judgment went accordingly. Appellant claims that the findings are insufficient to support the judgment, but this contention is not sustained by the record.

1. The court found “that at the time of the commencement of this action, the said plaintiff was for a long time prior thereto, and had been, and now is, the owner of the Stranahan ditch, and the water right belonging thereto.”

2. Upon the second issue the court found as an ultimate fact that the water right referred to in the above finding, and owned by the plaintiff, was “the first right to the waters of Coyote Creek, to the extent of seventy inches, measured under a four-inch pressure.” A jury was called in to advise the court upon some of the issues. There was submitted to the jury the following question: “Has any person a prior right to the waters of Coyote Creek to plaintiff, Marinda Wood?” To this question the jury answered Ho, and the court adopted the finding.

3. There was submitted to the jury the question whether any portion of the original Avater right, belonging to the Stranahan ditch, had ever been lost or abandoned by plaintiff, or any of her predecessors. The jury answered that it had not been, and this finding was also adopted by the court.

4. The acts of trespass charged by plaintiff against defendant were not denied in the ansAver, defendant relying upon a denial that the acts charged were wrongful or unlawful; he claimed the right to divert and use all the waters of Coyote Creek. The first three findings, therefore, dispose of the contention made upon the fourth issue.

There are a great many probative facts among the findings, but the ultimate facts, as found, are as we have stated them, and there is nothing ¡to show that the ultimate facts are entirely based upon'the probative facts, or in any way controlled by them. "We cannot look into the evidence to see the significance of the probative facts found by the court, and,- as they appear in the record, they throw no light upon the main issues, and, as stated before, in no way limit the-'effeet -of the ultimate facts found.

Judgment affirmed.

Works, J., Thornton,'J.; Sharpstein, J., and McFarland, J., concurred.  