Full opinion text
THE COURT. Defendants appeal on a bill of exceptions from a judgment adjudicating the water rights of plaintiff and defendants in and to the waters of the Temeeula-Santa Margarita River and its tributaries, located in Riverside and San Diego Counties, and enjoining defendants from interfering with the flow of the river except as provided in the judgment. At the outset it should be mentioned that on this appeal the questions presented for review all pertain to the rights of the parties as riparians. The voluminous record presented for review is to be found in 11 printed volumes, supplemented with 4 large volumes of exhibits. The cause below was tried over a period of three years, and actually consumed 444 court days. The briefs of the parties total over 2,000 pages. An examination of the pleadings and the record demonstrates that many issues were contested below that are now abandoned by appellants on this appeal. Among other things the rights of certain interveners were involved below and determined by the judgment. The correctness of this phase of the judgment is conceded. The respondent brought this action primarily to secure a declaration of its riparian rights in the waters of the Temecula-Santa Margarita River, and its tributaries, and for an injunction to prevent appellants from using more than their reasonable share of the waters of the stream. The trial court determined that respondent was reasonably entitled to 75 per cent of the flow of the main stream, and that appellants were entitled to 25 per cent, and during the specified months of low flow enjoined appellants from using more than 25 per cent of the flow of the main stream measuredi as provided in the judgment. Before discussing the issues presented on this appeal a brief description of each of the parties’ properties, and of the river and its tributaries should be given. The respondent is the owner of a tract of land situated in San Diego County originating in a single Mexican grant known as the Santa Margarita y Las Flores rancho, containing 133,440 acres. In the court below this property was referred to as the Santa Margarita ranch, and will be so referred to in this opinion. The western boundary of this ranch is the Pacific Ocean, along which it extends for about 17% miles. The property extends easterly from the ocean a distance of about 15 miles. The lands of appellants are situated in Riverside County east of respondent’s ranch, and contain in all about 79,177 acres. The western boundary of appellants’ land is about 10 miles easterly of the east boundary of respondent’s ranch. Appellants’ property consists of several contiguous tracts or grants, four of which originated in Mexican grants entitled Pauba grant, Temecula grant, Little Temecula grant, and Santa Rosa grant. In addition appellants own a 460-acre parcel contiguous to Little Temecula grant referred to below and in the briefs as the Vail government lands. These 5 parcels form one large irregularly shaped tract of land, frequently referred to in the trial court as the Vail ranch, and will be so referred to in this opinion. The most easterly of appellant’s properties is the Pauba grant, containing 27,662 acres. This tract was obtained by appellants as a single grant, and no part thereof has ever been conveyed away. West of the Pauba grant, and contiguous thereto, are two other grants—-the Temecula and the Little Temecula grants. The appellants own about y2 of the original Temecula grant. The portion they now own contains 10,402 acres and was obtained by them as a single grant. Located within the boundaries of the portion of this grant now owned by appellants are several fair sized parcels of land not now owned by appellants. Little Temecula grant is south of Temecula grant and west of Pauba grant, and contiguous to both. This was originally a single grant but in 1891 was partitioned by court order into 6 lots designated as lots A, B, C, D, E and F. Lots A, B, C and D have since been acquired by appellants and contain in all 1,726.73 acres. Northwesterly of the Temecula grant, and contiguous thereto, is the Santa Rosa grant which contains 46,340 acres. This grant is riparian to certain tributaries of the TemeculaSanta Margarita River, but it is conceded on this appeal that no portion of this grant is riparian to the main river. The Vail government lands containing 460 acres are south of Little Temecula grant and contiguous thereto. Appellants concede that this land is not riparian to the main river but contend, contrary to the finding of the trial court, that such land is riparian to a tributary of the main stream. Through portions of the appellants’ and respondent’s ranches, for varying distances, there flows the TemeculaSanta Margarita River and its tributaries—a river, which, in the summer months, has a relatively small flow. The hyphenated name given to this river is used for the reason that in its upper portion it is called the Temecula River, while in its lower portion it is called the Santa Margarita River. The trial court found (finding 8) that “the river or stream referred to in these findings as the Santa Margarita, and the river or stream referred to in these findings as the Temecula, is one and the same stream or river, and is hereinafter referred to as the Temecula-Santa Margarita River”. The respondent contends that the Temecula is a mere tributary of the Santa Margarita, and that it and another tributary— Murrieta Creek—unite to form the Santa Margarita. The respondent is in no position to challenge the above quoted finding. The Temecula-Santa Margarita River has its source in the mountains about 20 miles southeasterly of the southeastern boundary of Pauba grant. After entering the Pauba grant it flows northwesterly through a portion of the grant known as Nigger Valley for a distance of a little over three miles. It then enters a narrow canyon on the Pauba grant known as Nigger Canyon through which it flows for a distance of about two miles. As the river leaves this canyon it debouches over a porous area referred to as “the outwash area”, into which, except in times of heavy rains and floods, it disappears from the surface and percolates underground. In the dry season the river customarily reappears and becomes a surface stream on the Pauba grant about 3 miles westerly of the mouth of Nigger Canyon, and flows westerly across the western boundary of the Pauba grant. It then enters the Little Temecula grant through which it flows westerly for a distance of about iy2 miles. It then enters and flows westerly through a portion of the Temecula grant for a distance of about 1% miles. After crossing the westerly boundary of Temecula grant the river leaves the lands of appellants. From the time the river enters the Pauba grant until it leaves the Temecula grant it flows entirely within the properties of appellants, except for a distance of about % mile in the Temecula grant where the channel of the stream crosses a small parcel of land belonging to persons not parties to this action. As the river leaves the westerly boundary of the Temecula grant it enters a narrow gorge known as Temecula Canyon or gorge. The trial court found that, although through much of its length the Temecula-Santa Margarita River has both a surface and subsurface flow, all of the water—surface and subsurface flow—is brought to the surface at about the eastern end of Temecula gorge due to the existence of granite bedrock in the channel along the banks immediately easterly of this point. The court also found that the normal and usual surface flow of the Temecula-Santa Margarita River, at this point, when not artificially diverted, during the dry season of the year, amounts to 500 inches, exclusive of the flow of the Murrieta Creek. After entering Temecula gorge the river flows westerly for about 10 miles through this canyon and on to the lands of respondent. Within this 10 mile stretch are a number of small users of water, a few of whom appeared in this action as interveners, and whose rights were fixed by the judgment. Neither appellants nor respondent question the propriety of the judgment insofar as it relates to interveners. After entering the Santa Margarita ranch the TemeculaSanta Margarita River flows in a general southwesterly direction through the ranch for a distance of about 21 miles to the Pacific Ocean. After crossing the easterly boundary of the ranch the course of the river lies entirely within respondent’s property until it empties into the ocean. The trial court found (finding 8) and the finding is not challenged, that after entering respondent’s ranch, the stream does not flow as a continuous surface stream but “that in the dry and irrigating season of the year the surface stream customarily and ordinarily disappears, when not artificially interfered with, at a point on the plaintiff’s lands approximately eight (8) miles from the ocean, sinking into the sands and gravels of its bed or channel, and again reappearing as a surface stream two (2) to three (3) miles below, and thence flowing as a surface stream of diminishing volume to its confluence with tidewater”. In describing the Temecula-Santa Margarita River generally the trial court found that in the dry summer months, when not interfered with, the stream flows from its headwaters to the ocean partly on the surface and partly under the surface, rising to the surface and flowing thereon in places and disappearing below the surface in other places. The main river has several tributaries to which reference should be made. The most important tributary is Murrieta Creek, which joins the Temecula-Santa Margarita River in Temecula grant about % mile east of the westerly boundary of that grant. This river has its source north of Temecula grant, and flows through that grant to its junction with the main stream. This tributary has a continuous yearly flow, but in the summer months the flow averages but 20 inches. On its course through Temecula grant the Murrieta crosses several of the parcels heretofore mentioned that are no longer owned by appellants. The Murrieta has several tributaries. One of these is Santa Gertrudis Creek, which rises in the Pauba grant, flows for about 5 miles through that grant, then flows for about 4 miles through lands not owned by parties to this action, then crosses the extreme northeasterly tip of Temecula grant through which it flows for about % of a mile, and then leaves the lands of appellants flowing over lands not owned by parties to this action for about 3 miles to its junction with the Murrieta. The surface flow of this creek is not continuous, flowing only during the rainy seasons. Cottonwood Creek arises in the northerly portion of Santa Rosa grant, flows northerly through that grant for several miles to its junction with the Murrieta. This stream has no surface flow in the summer months. The court found that separating the drainage area of the Temecula-Santa Margarita River from the drainage area of Murrieta Creek is a well defined crest line which separates the two watersheds. This crest line is referred to as the Ternecula-Murrieta crest line. The effect of this crest line is to divide the drainage so that all of appellants’ lands within Pauba and Temecula grants southeast of this crest line (amounting to 22,359 acres) drain directly into the TemeculaSanta Margarita River, while all of appellants’ lands northwest of the crest line (amounting to 33,655 acres) drain directly into Murrieta Creek or its tributaries. The court also found that the Temecula-Santa Margarita River watershed upstream from its confluence with the Murrieta contains 373 square miles, and that the Murrieta watershed contains 258 square miles. . Another tributary of the Temecula-Santa Margarita River is Penjango Creek or dry wash. It has its origin south of all of appellants’ lands, flows in a northwesterly direction across a corner of Little Temecula grant to its junction with the main river a short distance upstream from where the Murrieta joins the river. This creek carries no surface water except in the rainy or flood season. There is a material dispute betiveen the parties, hereafter discussed, as to Avhether the Penjango Creek touches the Vail government lands, and as to whether it has an appreciable underground flow. Another tributary of the Temecula-Santa Margarita River is Sandia Creek, which has its source in the Santa Rosa grant through which it Aoaa's for several miles, then meandering southerly across lands not ov-ned by parties to this action to its junction with the main stream just east of where the main stream enters the Santa Margarita ranch. Deluz Creek also has its source on the Santa Rosa grant, then Aoavs southwest across lands not owned by parties to this action, and then enters respondent’s ranch, where it joins the Temecula-Santa Margarita River. These two tributaries have their source north of the main river. South of that river is F allbrook Creek, Avhich flows through the Santa Margarita ranch in a Avesterly direction for almost all of its length. This tributary, as well as the others above described, flows mainly in the rainy season. Near where this creek joins the Temecula-Santa Margarita River on respondent’s property, respondent has constructed a dam and created an artificial lake known as Lake O’Neill reservoir, used for irrigation purposes. This reservoir is used to store not only some of the waters of Fall-brook Creek, but also some of the waters of the main river where a diversion dam and ditch have been constructed. Located on the Vail ranch along both sides of the channel of the main river is a large level valley or basin known as Temecula alluvial basin. This basin extends along the line of the river for about 8% miles, and varies from % to 1 y2 miles in width. The trial court found that this basin is entirely surrounded by hill lands, except where intercepted by the river, and is almost entirely composed of impervious mesa silt. At the trial appellants contended that a vast underground water plane underlay this ancient silt formation. This was one of the main issues presented to the trial court. The trial court found that no such common water plane existed, but that there were a few lozenges or lenses of pervious material in the mesa silt formation thus creating small suspended water planes in that formation. These findings are not challenged on this appeal, the appellants, in view of the conflicting evidence, conceding that these findings are amply supported. The basin itself is composed of porous materials—sands, gravels, boulders and other fluvial deposits—to a depth of several hundred feet. The upper % in area and % in length of this basin is filled with coarser and looser material than the balance of the area, and is called the outwash area of the basin. The outAvash area contains 2015.48 acres. The balance of the banin is called the artesian area. The basin as a whole, and particularly the outwash area, creates a large underground basin into which the water of the river sinks, and in fact, in the dry season, into Avhieh it entirely disappears as a surface stream, reappearing again on the surface across the artesian area. Appellants for many years have diverted Avater for irrigation both from the surface stream and from the underground basin. The trial court found that diversions from the basin were tantamount to surface diversions, finding that any pumping from the basin had the effect of diminishing the surface flow to the extent of the pumping, and also finding that there is no appreciable return from appellants’ irrigation. About 1900 the predecessors of appellants constructed, and until 1927 appellants maintained, on the Pauba grant, at about the upstream edge of the artesian area where the river reappears as a surface stream, an earthen dam across and intersecting the flow of the Temecula-Santa Margarita River. Water diverted by means of this canal and certain diversion AAorks was used in portions of Pauba and Temecula grants riparian to the main stream. This diversion is referred to as the upper diversion. By means of this diversion the appellants and their predecessors for many years during the irrigation season have diverted the entire or nearly the entire surface flow of the stream in varying amounts from approximately 75 to approximately 200 miner's inches. In 1927, while this action was on trial, appellants abandoned this upper diversion and substituted for it the Tule pumping plant, about % of a mile doAvnstream from the upper diversion. By means of this plant appellants divert the surface floAV formerly diverted by the upper diversion. In 1919, about 1 mile easterly from the upper diversion and about Ys mile northerly from the channel of the river, in Temecula alluvial basin in Pauba grant, appellants constructed a AAell and pumping plant designated as well No. 30. By means of this plant appellants during the irrigation season have pumped between 1,000 and 1800 acre-feet annually, and have used the same for beneficial purposes on their riparian lands in Pauba and Temecula grants. In 1922 and 1923 the appellants constructed the Cantarini pumping plant in Little Temecula grant. This plant draws water directly from the surface flow and from 3 wells sunk into the alluvial basin about 45 feet from the stream channel, and is capable of diverting practically the entire surface flow in the summer months. This water so secured is used partially on riparian lands, but the g’reatest part is used on lands in Temecula and Little Temecula grants not riparian to the main stream, and also an appreciable portion is used on the Vail government lands, found by the trial court to be non-riparian. Also in 1922 and 1923 appellants remodeled and reconstructed another pumping plant—this one located in Temecula grant several miles downstream from the Cantarini plant, and called the Bridge pumping plant. This plant had been originally constructed in 1912, but had been only operated intermittently. In 1922 and 1923 two large power pumps that divert directly from the surface stream were installed. This plant has a maximum capacity of 260 miner’s inches, and the water diverted thereby has been used for irrigation purposes partially on lands riparian to the Temecula-Santa Margarita River, and partially on lands in the Murrieta watershed. In addition, for many years, appellants have maintained 4 artesian wells in different parts of the basin by means of which about 1 second-foot of water is withdrawn from the underground waters. The trial court found (finding 17) that the waters diverted by appellants were applied and used upon the Vail ranch “in a relatively modern and scientific manner, for beneficial uses and purposes, including the irrigation of crops, the watering of livestock, and domestic purposes; that the proper cultivation and irrigation of said lands required the use of said waters at the times when and in the amounts so used’’. It was also found that until 1923 the appellants only diverted and used the amount of water to which they were reasonably entitled, and that prior to 1923 sufficient water remained in the stream to supply all of respondent’s then reasonable needs. In the year. 1923 the appellants greatly increased their diversions, particularly from the Bridge and Cantarini pumping plants, and, in the summer months, have conveyed away and threaten to continue to convey away 60 to 85 per cent of all the water of the Temeeula-Santa Margarita River measured at Temecula gorge and naturally flowing therein during the irrigation season. The main diversion on respondent’s property is at Lake O’Neill reservoir. This reservoir has a capacity of about 1140 acre-feet and is located near the point where Fallbrook Creek joins the Temecula-Santa Margarita River. By means of a temporary earthen dam constructed in the river the surface flow is diverted during the dry season into this reservoir. Since 1886 it has been the custom of respondent not to construct this dam until about the middle of March of each year after the spring rains. The dam remains in the river until washed out during the next heavy rainy season. There are also several wells and pumping plants operated by respondent. The appellants charged that these were crude and inefficient, and that a majority of them had been abandoned, and that respondent’s methods of use were wasteful and inefficient. The trial court found (finding 19) that “It is not true that the methods employed by the plaintiff and its predecessors in interest for the diversion or storage of said waters have at all times, or at any time, been crude or inefficient, or that the shortage of water experienced on said Santa Margarita ranch during the summer and irrigation season of the year 1923 and years subsequent thereto was in consequence of any unscientific, crude, careless or negligent structure or conduct employed on the part of or used by the plaintiff for the diversion of said waters into said reservoir. . . . but such shortage of water was due entirely to said unreasonable diversions of the defendants during the summer and irrigation season of said years ...” In finding 20 it is stated that “one or two, but not a majority, of the wells and pumping plants on said Rancho Santa Margarita have fallen into disuse and into a condition of a lack of repair . . . but several well ordered and equipped pumping plants are now, and for several years last past have been, maintained and operated” to withdraw the underground waters for useful and beneficial purposes on riparian land. The trial court also found, and this finding is admittedly supported by the evidence, that the normal flow of the Temecula-Santa Margarita River is not sufficient to supply all the-riparian needs of all of the riparian lands of either respondent or appellants, and that there is only enough water available for the irrigation of a portion of their riparian lands and for the uses thereon which are most valuable and profitable. This was practically stipulated to by the parties, and was one of the basic facts upon which the action was tried. After the appellants enlarged their diversions in 1923, the Temecula-Santa Margarita River was caused thereby to disappear as a surface stream on the Santa Margarita ranch some 6 miles further upstream than had theretofore occurred. This caused the respondent to investigate and upon ascertaining the facts, to vigorously protest to appellants. Unable to agree, this action was seasonably instituted by respondent in 1924. It is unnecessary to set forth a summary of the pleadings. Suffice it to say that the main relief sought by respondent was twofold: (1) for a determination of the relative rights of the parties as riparian owners in and to the waters of the Temecula-Santa Margarita River and its tributaries. In this connection respondent claimed it was entitled to 6/7 of the water of the stream; and (2) for an injunction to prohibit diversions by appellants beyond the extent of 1/7 of the total flow. The answer of appellants raised many other issues than the two above discussed. Appellants claimed a large portion of the waters of the stream by prescription; claimed respondent’s action was barred by laches; claimed that underlying a large proportion of the Vail ranch was a common underground water table, and raised many other issues, all of which were decided adversely to their contentions, and have been abandoned on this appeal. In addition appellants put squarely in issue the extent of the parties’ riparian acreage, the extent thereof that could be profitably irrigated, the quantity of water available, and challenged respondent’s right to the injunction. Appellants claimed the right to 5/7 of the total flow of the river. As already indicated, the trial court decided many of the issues raised by the pleadings in favor of respondent, and many of these important issues have been abandoned on this appeal by appellants. Speaking generally, so far as the issues raised on this appeal are concerned, it was incumbent upon the trial court to ascertain first the extent of the riparian acreage of each of the parties and the quantity of water available. In view of the admitted fact that there is insufficient water to irrigate all of said lands or for the other uses of the parties, it was also necessary to ascertain the extent of such riparian acreage suitable for and capable of profitable irrigation. It was then incumbent upon the court to declare the rights of the parties in and to the water in dispute. Secondly, the court had to determine, considering all the factors required by the law to 'be considered, whether an injunction should be issued, and if so what its terms or conditions should be. The trial court determined these issues in a series of exhaustive findings, and entered its judgment accordingly. Speaking generally, based on its findings as to riparian acreage, and extent thereof suitable for irrigation, and the quantity of water available, the court declared that respondent was entitled to % of the surface flow of the Temecula-Santa Margarita River, exclusive of the flow of the Murrieta, and that appellants were entitled to % of such flow plus 100 per cent of the flow of the Murrieta and its tributaries, all diversions from the underground basin by appellants to be considered as surface diversions, and further, that during the summer months appellants should be enjoined from diverting more than the quantity awarded them. In connection with the declaratory features of the case the trial court found that the Santa Margarita ranch contains 133,440 acres, of which 38,739 described acres are riparian to the Temecula-Santa Margarita River; that the normal flow of the river is insufficient for all of the riparian needs of respondent; that there is sufficient water available for the irrigation of only a portion of the riparian lands and for those uses thereon which are most profitable and valuable; that of the total riparian acreage of respondent there are 12,375 described acres capable of and adapted to practical and profitable irrigation; that this described area is particularly suitable for the growing of citrus fruits and other crops; that for the proper irrigation of said area 30,289 acre-feet of water per annum is useful,' valuable and necessary; that of the 12,375 riparian acres suitable for irrigation 10,190 acres are so located as to be free of frost and the growing season extends over the entire year; that the remaining 2,185 riparian acres suitable for irrigation are so located as to be annually visited by frosts and the growing season thereon extends over but 10 months; that of respondent's total riparian acreage 15,290 acres are rough and rugged and not susceptible of practical or profitable irrigation ; that certain described areas are so saturated with water as to be not suitable for the growth of crops, and other small areas require drainage; that 180 acres of said land are supersaturated, resulting in an alkali soil condition rendering the area totally unfit for the growing of crops. In connection with the actual present and past use of water by respondent (as distinguished from potential uses or needs discussed above) the trial court found that the surface waters of the Temecula-Santa Margarita River naturally diffuse themselves into and through the riparian lands contiguous to the stream, saturating large deposits of underground sands and forming and supporting underground stores of water; that in divers depressions in the riparian lands the water has always collected in surface pools, to which pools cattle and livestock of respondent have always been accustomed to resort for drinking; that for the past 40 years respondent and its predecessors have devoted the ranch largely to the raising and pasturing of cattle; that several thousand head of cattle are usually maintained thereon; that for 40 years past respondent and its predecessors during the summer months have taken the full flow of the surface stream for the purpose of watering livestock and to some extent for irrigation; that the amount of land actually irrigated by respondent in the past has been (finding 5) “from about one hundred (100) to eight hundred (800) acres in different years” (the evidence showing that in most years the area irrigated has been around 500 acres); that respondent’s livestock that pasture along the river from Lake O’Neill reservoir upstream for a distance of 8 miles are dependent upon the surface flow of the river for a reasonable drinking supply; that the continued natural flow of the stream as fixed in the judgment is necessary for the watering of respondent’s livestock and for respondent’s domestic and irrigation uses. As to appellants’ lands, the court found that the Vail ranch totals 79,177 acres (finding 7) “contacting throughout, and lying within the general watershed of the Temecula-Santa Margarita River and its tributaries ’ ’; that each of the 5 tracts owned by appellants was acquired by distinct lines of title and independent conveyances from the original sources of title; that Little Temecula grant was partitioned in 1892 into 6 parcels numbered lots A, B, C, D, B and F; that appellants own lots A, B, C, D; that lots A and B abut on the stream and contain 1277 acres riparian to the Temecula-Santa Margarita River; that lots C and D do not abut on the main stream or any of its tributaries; that although originally all of Little Temecula grant was riparian to the river, in the decree of partition no reference at all was made to riparian rights- of either the abutting or nonabutting lots; that lots C and D (containing 450 acres) are not riparian to the main river or any of its tributaries. As to Temecula grant, as has already been mentioned, appellants own a little less than one-half of the original grant, and within the boundaries of this half are various parcels not owned by them. One of these parcels is the site of the unincorporated town of Temecula. It will also be remembered that the Temecula-Santa Margarita River and its tributary Murrieta Creek, join within the Temecula grant, and that there is a well defined crest line dividing the drainage areas of the two streams. The trial court found that these were separate watersheds. It found that appellants own 2,798 acres in Temecula grant riparian to the Temecula-Santa Margarita River, being all the lands of appellants in that grant lying south of the Temecula-Murrieta crest line; that appellants own 1362 acres of Temecula grant riparian to Murrieta Creek, being part of appellants’ lands in the grant lying north of the crest line. The court was not consistent in its conclusion that the lands of appellants in the Murrieta watershed were not riparian to the main river. It found that immediately north of the confluence of the Murrieta with the main stream, and north of the crest line, and within the Murrieta drainage area, in Temecula grant, the appellants own two parcels of land designated as lots 32 and 33—one of 106 acres lying east of Murrietta Creek and one of 87 acres lying west of the creek; that as to the 106 acre parcel it is so located with reference to the Temecula-Santa Margarita River and the other riparian lands of appellants within Temecula grant (finding 9) “that the surface drainage from said land is directly into said Murrieta Greek, and thence along the course of the surface channel of said Murrieta Creek directly into said Temecula Greek (Temecula-Santa Margarita River) entirely within and upon riparian lands of the defendants in said Temecula grant, and without passing, during any part of its course, over lands non-riparian to said Murrieta Creek or through or over lands not in the ownership of parties other than defendants. “That other than said parcel of one hundred six (106) acres, there is no land of the defendants within the watershed of said Murrieta Creek and lying within either the Pauba or Temecula grants, from which the surface drainage reaches the Temecula River or Creek without first passing through lands nonriparian to said Temecula Creek and in the ownership of parties not of record in this action” except the 87-acre parcel above mentioned which is “rocky, rugged and precipitous” and which “is not suitable or adaptable to cultivation either with or without irrigation”. Under this and the preceding findings, except as to these two parcels which are an integral part of the Temecula grant, all of the lands in that grant riparian to the Murrieta are held nonriparian to the main river, but these two parcels based on what appellants call the “surface drainage theory”, are held riparian to both streams. Pauba grant is contiguous to both the Temecula-Santa Margarita River and to Santa Gertrudis Creek, a tributary of the Murrieta. The two drainage areas are separated by the Temecula-Murrieta crest line. The trial court separated the two watersheds. It found that appellants own in Pauba grant 17,375 acres riparian to the main river, being all of the Pauba grant south of the crest line. As to the balance of Pauba grant north of the crest line and lying within the Murrieta drainage area no finding was made as to riparian acreage. The Santa Rosa grant is not contiguous to either the Temecula-Santa Margarita River or to Murrieta Creek, and appellants concede that the trial court correctly found that no part of said grant is riparian to those streams. The trial court found (finding 9) that 9,535 described acres are riparian to Deluz Creek “but no part thereof is susceptible of practical and profitable cultivation under irrigation with the waters of said creek”, and that 10,270 described acres within the grant are riparian to Sandia Creek “but no part thereof is susceptible of practical and profitable irrigation with the waters of said creek”. Other lands in this grant, without describing the acreage, are found riparian to Cottonwood Creek, a tributary of the Murrieta. As to the Vail government lands appellants concede that this acreage is not riparian to the main river. The trial court found that it was not riparian to any of the tributaries of the main river. This finding is challenged by appellants, their contention being that the acreage is riparian to Penjango Creek. After thus describing the riparian acreage of the appellants, the court found that of the acreage found riparian to the Temecula-Santa Margarita River,, the following acreages within each grant (finding 10) were “capable of and adapted to profitable and practical irrigation with water of and from said Temecula Creek or River . . . and suitable for habitancy and domestic irrigation and other uses and purposes’’ and required the following quantities of water: Temecula grant—1234 acres reasonably requiring 3,550 acre-feet per annum. Little Temecula grant—-947 acres reasonably requiring 1584 acre-feet per annum. Pauba grant-—1740 acres reasonably requiring 4,994 acre-feet per annum. The court next finds that of the riparian lands of appellants within the Murrieta watershed within Temecula grant, 1,022 acres are capable of and adapted to practical and profitable irrigation, reasonably requiring 2,191 acre-feet per annum; that all of the lands of appellants found susceptible of profitable irrigation are suitable for the growing of various designated crops, but are so situated that they are annually visited by killing frosts, and the growing season thereon normally extends over but 8 months of the year. On the subject of damage the trial court found that appellants’ various pumping plants and diversion works are capable of pumping, and that it was appellants ’ intention to pump, from the surface flow and from the underground basin 2% to 3% times the amount of water to which appellants are lawfully entitled; that from 1923 to the time of trial appellants have taken 60 to 85 per cent of the total flow of all of the water in the river measured at Temecula gorge; that the effect of the increased withdrawals by appellants starting in 1923 has been to injure respondent in the irrigating seasons of 1923, 1924, 1925 and 1928 by causing the main river to cease to flow across the easterly portion of the Santa Margarita ranch as a surface stream approximately 6 miles further upstream than it had done prior to 1923; that as a result the stream ceased to afford water sufficient for respondent’s cattle pasturing on the riparian lands and ceased to afford water sufficient for respondent’s cattle to drink from the surface flow of said stream where they had previously been accustomed to drink; that in the irrigating seasons 1923-1928 (excluding the seasons of 1926-1927) from June 1st on in each of the above years respondent could not and did not receive sufficient water to fill its Lake O’Neill reservoir and as a result respondent had insufficient water to irrigate its riparian lands; that no shortage occurred in 1926 or in 1927, but in the spring of those years heavy unprecedented and unusual rainstorms occurred in the Temecula-Santa Margarita River watershed. The court also found that on both respondent’s and appellants’ properties the banks and channel of the river at places are covered with willows, and that at places on both ranches the river flows in an extremely wide and shallow channel exposed to the sunlight, resulting in large evaporation and transpiration losses. After finding that the parties have correlative rights in the stream, the court finds that for the practical division of the waters of the stream the parties should maintain 6 measuring stations, describing them in detail, and that appellants must maintain measuring meters at their various pumping plants and wells; that by reason of the situation and condition of respondent’s 12,375 riparian acres susceptible of practical and profitable irrigation requiring 30,289 acre-feet of water per annum (finding 33) “the plaintiff owns and reasonably claims the right, and is entitled to take and use on its lands riparian to said stream in Santa Margarita Ranch, as herein defined, seventy five one hundredths (75/100th) part of the water of said Temecula-Santa Margarita River, which naturally, when not artificially diverted or abstracted, flows and descends” in the main river as measured at station 6, located on respondent’s property, after first deducting the flow of the Murrieta; that by reason of the situation and location of appellants’ 3,853 riparian acres susceptible of practical and profitable irrigation requiring 10,128 acre-feet of water per annum “the defendants own and reasonably claim the right and are entitled to take and use on their lands riparian to said stream in said Vail Ranch, as herein defined, twenty-five one-hundredths (25/100ths) part of the water of said TemeculaSanta Margarita River which naturally, when not artificially diverted or abstracted, flows and descends in the channel” of the river as measured at station 6, after first deducting the full flow of the Murrieta; that this 25/100 of the flow of the river awarded to appellants is awarded to the separate grants of appellants as follows: Temecula grant—8 8/10 of the total flow; Little Temecula grant—3 9/10 of the total flow; Pauba grant—12 3/10 of the total flow. The court then finds that by reason of the situation and location of appellants’ 1,022 acres riparian to the Murrieta susceptible of practical and profitable irrigation, requiring 2,191 acre-feet of water per annum, the appellants “own” and are entitled “to take and use on their lands riparian to said stream in said Vail Ranch one hundred (100) per cent” of the flow of the Murrieta and all. of its tributaries; that the flow of the Murrieta during the irrigating season (which the evidence shows is about 20 inches) is insufficient in volume, if attempted to be allocated between the parties, to be susceptible of practical apportionment or division. Similar findings are made as to Santa Gertrudis and Cottonwood Creeks. It is also provided that the small quantity awarded to interveners shall be deducted from respondent’s share of the water. It should be noted that in the above summarized portions of the findings, the trial court in declaring the rights of the parties first ascertained the riparian acreage susceptible to practical irrigation, then ascertained the quantity of water required for that acreage, and declared the rights of the parties based on that relation of those figures. Both as to irrigable acreages and as to duty of water as found by the court, the respondent is found to own 3 times as much irrigable riparian land and to require 3 times as much water as appellants own and require. It is not contended that either party has ever irrigated or intends to irrigate their entire irrigable riparian acreage. The findings and evidence clearly show the contrary. In its conclusions of law and judgment the trial court provided that all waters taken from the Temecula alluvial basin by appellants by means of their wells and pumping plants should be treated as surface diversions; that appellants are not entitled to use water awarded to one grant on any other grant; and that defendants are not entitled to convey any water across the Temeeula-Murrieta crest line except as to the two parcels located near the confluence. After thus disposing of the declaratory features of the ease the court found that respondent was entitled to an injunction, and in its judgment granted respondent an injunction: 1. Enjoining appellants from using the water awarded any one grant interchangeably upon any other grant. 2. Enjoining appellants from diverting any water to or using any portion of the waters upon lots C and D of the Little Temecula grant or upon the Vail government lands; and 3. Enjoining appellants from diverting from the surface flow or from the basin from May 1st to Oct. 31st of each year more than 25 per cent of the total flow of the stream measured at Temecula gorge. It is to be noted that the injunction prohibits appellants from diverting during the summer months approximately (the measuring points being different) the same quantity of water awarded to respondent in the declaratory portion of the judgment. On this appeal appellants urge 5 main points: 1. The trial court erred in determining the amount of appellants’ lands riparian to the Temeeula-Santa Margarita River and to Murrieta Creek and its tributaries, and in allocating the waters of these streams on the basis of such erroneous determination; 2. The court erred in including within the lands of respondent found to be riparian 1200 acres of land not within the watershed of the Santa Margarita River; 3. Respondent is not entitled to any injunction; 4. The trial court erred in refusing to consider the subsurface flow of the stream and the underground basins in respondent’s lands, and in sustaining objections to testimony regarding such subsurface flow and underground basins; and 5. The method imposed by the judgment for the measurement and division of the water between the parties is erroneous and violates substantial rights of appellants. The first four of these contentions will be considered in order. Inasmuch as we are of the opinion, for reasons hereafter appearing, that a reversal is called for, the fifth point will not be discussed. The alleged errors claimed to have been committed in this regard, if any in fact exist (of which we have grave doubts) are not likely to occur on the new trial in view of the conclusions reached on the other points. The appellants ’ first main contention is that the court erred in determining the riparian acreage owned by them. It is contended that as to each of appellant’s five tracts of land the trial court either as a matter of fact, or by an erroneous holding as to the law, improperly excluded a material portion of their holdings from the riparian status. That a material error in this respect is prejudicial to appellants, is obvious from the summary of the findings already made. As there appears, the trial court first found the extent of the riparian acreage of each of the parties. Then it found the number of those riparian acres that were capable of profitable irrigation. The available water was then awarded on the basis of the number of irrigable riparian acres owned by the parties, and the water requirement of those acres. It is obvious that if the trial court made an appreciable error in computing the riparian acreage owned by either party the proportion of irrigable riparian acres owned by each would undoubtedly have been different, and the award of water to each of the parties would necessarily have been different. First as to Temecula grant. It is appellants’ contention that the trial court committed prejudicial error in computing their riparian acreage in this grant in two respects: 1. In holding that the portion of the Temecula grant owned by them within the Murrieta drainage area was not within the Temecula-Santa Margarita watershed; and 2. In its findings as to the number of acres within Temecula grant owned by appellants that are riparian to Murrieta Creek. Both of these contentions, to a certain extent, involve the same question of law. The trial court expressly held that as to respondent, the drainage area of the Murrieta and the drainage area of the Temecula-Santa Margarita River were separate and distinct watersheds. The appellants were specifically enjoined, for that reason, from transporting any water from either river across the Temeeula-Murrieta crest line dividing the two drainage areas, except as to lots 32 and 33 at the confluence of the two streams. It will be remembered that the Murrieta is a tributary of the Temecula-Santa Margarita River, and that it joins the main river on appellants’ property within the boundaries of Temecula grant. As already pointed out, the trial court found that all of the Temecula grant owned by appellants south of the crest line was riparian to the main river (totaling 2,798 acres of which 1234 were found irrigable) and that north of the crest line appellants owned 1362 described acres in Temecula grant riparian to the Murrieta, of which 1,022 acres were found to be irrigable. The court also found that the 106 and 87 acre parcels at the confluence of the two streams, but located entirely within the Murrieta drainage area, were riparian to the main stream for the reason (finding 9) that these two parcels were “so located with reference to said Temecula Creek (TemeculaSanta Margarita River) and other riparian lands of the defendants lying within said Temecula grant that the surface drainage from said land is directly into said Murrieta Creek, and thence along the course of the surface channel of said Murrieta Creek directly into said Temecula Creek, entirely within and upon riparian lands of the defendants in said Temecula grant, and without passing, during any part of its course, over lands non-riparian to said Murrieta Creek or through or over lands not in the ownership of parties other than the defendants"; that other than these two parcels (one of which is found to be non-irrigable) there is no other land of the appellants within the watershed of the Murrieta and lying within either Pauba or Temecula grants “from which the surface drainage reaches the Temecula River or Creek without first passing through lands non-riparian to said Temecula Creek and in the ownership of parties not of record in this action". Under these and other findings it was the theory of the trial court that, as to respondent, located more than 10 miles downstream from the confluence of the main river and the Murrieta, the lands of appellants in Temecula grant located in the Murrieta drainage area were not, except as to the two parcels already mentioned, riparian to the main river. The two parcels located north of the confluence differ from the balance of Temecula grant in the Murrieta drainage area owned by appellants (according to the findings) only in that surface drainage from these two tracts drains directly from them into the Murrieta, thence to the confluence entirely within the lands of appellants. As to the balance of the riparian area in Temecula grant in the Murrieta drainage area surface drainage is either directly into the Murrieta on appellants’ lands or into the Murrieta across one of the small “islands" of land deeded away by appellants. One of these deeded out “islands" is the towmsite of Temecula located on both sides of the Murrieta immediately north of the two parcels located north of the confluence. The result is that all surface drainage from the area now under consideration drains into the Murrieta, but before reaching the main river must cross.the towmsite of Temecula not owned by appellants, and in some cases crosses other of these deeded out parcels. As far as the findings are concerned, it was apparently on this theory, referred to by appellants as the “surface drainage theory”, and first advanced in the trial court by respondent’s expert witness Pinkie, that the trial court distinguished between the two parcels heretofore mentioned, and the balance of Temecula grant located within the Murrieta drainage area. Apparently, if the appellants had not deeded away the town-site of Temecula and the other small islands of land within the Temecula grant, the trial court would have held that all of the grant north of the crest line was riparian to the main river. As already stated, all of Temecula grant now owned by appellants was acquired by them as part of a single grant, and large areas of it have access to both rivers, and for about y2 mile below the confluence the grant is contiguous to the stream. We think that the trial court was in error in holding, as to a downstream owner such as respondent, that the riparian lands of appellants in the Murrieta drainage area were not riparian to the main river. It is well settled that the extent of lands having riparian status is determined by 3 criteria: 1. The land in question must be contiguous to or about on the stream, except in certain cases not now involved. The length of frontage is an immaterial factor. Thus in Joerger v. Mt. Shasta Power Corp., 214 Cal. 630 [7 Pac. (2d) 706], a 40-acre tract with but a 250-foot contact with the stream was held to be riparian to the stream. An examination of the diagram contained in the opinion of that case demonstrates that the major portion of the surface drainage of the 40-acre parcel held to be riparian designated as parcel D, in order to reach the stream necessarily had to cross parcels B or C which had been deprived of riparian rights. (See, also, Omnes v. Crawford, 202 Cal. 766, 767 [262 Pac. 722].) Clearly under these eases, and others that could be cited, it is access to the stream, and not whether all surface drainage from the area in question drains directly into the stream at the point of access, that determines the riparian status of the land. These cases clearly refute the so-called “surface drainage theory”. In the present case Temecula grant has access to both banks of the Temecula-Santa Margarita River for y2 mile below the confluence of the two streams and for 1 y2 miles above the confluence. 2. The riparian right extends only to the smallest tract held under one title in the chain of title leading to the present owner. (Boehmer v. Big Bock Irr. Dist., 117 Cal. 19 [48 Pac. 908].) In the instant case all of Temecula grant owned by appellants is held under a title derived from a single source. 3. The land, in order to be riparian, must be within the watershed of the stream. (Anaheim Union Water Co. v. Fuller, 150 Cal. 327 [88 Pac. 978, 11 L. R. A. (N. S.) 1062].) It is with requirement 3 that we are now particularly concerned. Specifically, the question presented is as to the correct definition of a watershed as to a riparian owner downstream from where two converging streams join; or, stated another way, as to such downstream owner, are lands located within the drainage area of a tributary within the watershed of the main stream? It is appellants’ theory that all of the 10,402 acres of Temecula grant owned by them are riparian to the TemeeulaSanta Margarita River, as against respondent, a downstream riparian owner, regardless of the fact that the major portion of the area is within the drainage area of the Murrieta Creek. Appellants contend, and we agree with the contention (assuming the existence of requirements 1 and 2, supra) that as to any owner below the confluence of two branches of a stream, the drainage areas of both branches must be deemed to constitute a single watershed, where riparian land (at least in one single grant) is owned by the upper owner on both branches. Although there are many cases purporting to define the limits of a watershed, there is a paucity of authority on the subject in so far as the rights of the parties in lands bordering on converging streams are concerned. We have been cited to but two California cases (and independent research has disclosed no other) where the point was directly involved. The two cases are Holmes v. Nay, 186 Cal. 231 [199 Pac. 325], and Anaheim Union Water Co. v. Fuller, supra, both leading cases on various phases of our water law. The two cases when considered together, establish the law applicable to the rights of riparians on converging streams. In the Holmes case, Nay owned a 101-acre tract (which we will designate as tract No. 1) through which the main stream flowed. After crossing the downstream boundary of tract No. 1, the main stream became one of the boundaries of a second tract owned by Nay (which we will designate as tract No. 2). Immediately downstream from Nay’s tract No. 2 were the lands of plaintiff Bernard, and below that some distance the lands of plaintiff Holmes, both areas being riparian to the main stream. Tract No. 2 was a separate tract from tract No. 1, and was a subdivision of a Mexican grant, as were likewise the properties of Holmes and Bernard. Flowing through tract No. 2 was a tributary of the main stream, which joined the main stream before the main stream reached the upstream boundaries of plaintiffs’ properties. Separating the drainage area of the main stream from that of the tributary was a low divide or crest line. Purporting to act in the exercise of his riparian rights, Nay diverted water from the main stream in tract No. 1, conveyed it over the crest line, and used a part of it on that portion of tract No. 2 that was in the drainage area of the branch. So far as we are here interested the question thus presented was whether Nay in the exercise of his riparian right, could lawfully divert water from the main stream and use it within the drainage area of the branch as against lower riparians whose lands were located downstream from the confluence. Stated another way, against such lower riparians was the land within the drainage area of the branch riparian to the main stream? That is exactly the problem presented in the present ease. The court in the Holmes case held, in effect, that as to lower riparian owners whose lands are located below the confluence, the drainage area of the main stream and that of the tributary must be considered one watershed. In this connection (at p. 240) this court stated: “It seems, also, that part of Nay’s land lies between the main stream and a branch, the latter coming into the former before the stream reaches thú land of either of the plaintiffs, so that some of Nay’s land is in the watershed of the main stream above where the branch comes in and some is in the watershed of the branch. It seems also that Nay is taking the water from the main stream and using at least a portion of it on land in the watershed of the branch. This is complained of, but this he has the right to do. Both watersheds are but parts of the watershed of the stream as it passes the plaintiff’s lands, and the rule that the owner of a tract of riparian land may not convey and use the water without the watershed of the stream has no application. The water is not conveyed and used without the watershed of the stream which passes the plaintiff’s lands, and that stream is the stream in which the plaintiffs have rights. They have no rights in the main stream and the branch above as separate streams. The situation is the exact converse of that presented in Anaheim etc. Co. v. Fuller, 150 Cal. 327 [88 Pac. 978, 11 L. R. A. (N. S.) 1062], where the junction of the stream and the branch was below the lands of the complaining riparian owner. Any other rule would be wholly impracticable and would, in many cases, practically destroy the riparian rights of an upper owner.” This constitutes a direct and unequivocal holding that as to riparian lands downstream from the confluence the two branches constitute but one watershed. As will be noted from the above quotation from the Holmes ease the court there held that the situation there under consideration was the exact converse of that presented in Anaheim Union Water Co. v. Fuller, supra. This last-named case is heavily relied upon by respondent to support the holding of the trial court in the present case. An examination of that ease demonstrates that nothing contained in the opinion is contrary to what was later enunciated in the Holmes case—in fact, the rule of the Anaheim case serves to strengthen and explain the rule of the Holmes case. In the Anaheim case the defendant owned two tracts of land, tract No. 1 contiguous and riparian to the Santa, Ana River, and tract No. 2, adjoining tract No. 1, contiguous and riparian to Mill Creek, a tributary of the Chino Creek, which was a tributary of the Santa Ana River. Separating the drainage area of the main stream from that of its tributaries was a crest line. The plaintiff owned a tract of land contiguous and riparian to the Santa Ana River downstream from defendant, but upstream from the confluence of the river and Chino Creek. The defendant desired to divert from the main river on tract No. 1 and to use the water on tract No. 2 within the drainage area of the tributary. Obviously, water so diverted would be entirely by-passed around plaintiff’s riparian lands located upstream from the confluence. The court very properly held that, where two streams unite, with regard to lands abutting thereon above the junction, the drainage area of each stream is a separate watershed. After stating the elementary rule that land not within the watershed is not riparian, and after referring to the findings adverse to defendant’s contentions, the court stated (p. 330) : “The defendants claim that these findings are contrary to the eviclence and that this rule does not apply to the land they seek to irrigate, because, while it is wholly within the Mill Creek watershed, it is .also within the general watershed of the Santa Ana River, considered as an entirety including the valley and the slopes leading thereto from its sources to its mouth. This fact does not affect the case, at least so far as the land of the plaintiffs is concerned. The principal reasons for the rule confining riparian rights to that part of lands bordering on the stream which are within the watershed are, that where the water is used on such land it will, after such use, return to the stream so far as it is not consumed, and that, as the rainfall on such land feeds the stream, the land is, in consequence, entitled, so to speak, to the use of its waters. Where two streams unite, we think the correct rule to be applied in regard to the riparian rights therein, is that each is to be considered as a separate stream, with regard to lands abutting thereon above the junction, and that land lying within the watershed of one stream above that point is not to be considered as riparian to the other stream. The fact that the streams are of different size, or that both lie in one general watershed or drainage basin should not affect the rule, nor should it be c