—I concur, and will add that ifj the plaintiff has never used the water for any-useful or beneficial purpose, he was never an appropriator, arid if he has ever used it for the purposes above mentioned, and then ceased to use it, his right has ceased. This is so by both statute (Civ. Code, sec. 1411) and the law fixed by the decisions in this state made before the statute was enacted. If he ever appropriated the water, or his right has ceased by non-user, we cannot see what right he has against the defendant, a riparian proprietor, to continue his diversion and waste of the water.