Rodemeyer

This is an appeal from a judgment in favor of defendant; the action being one wherein plaintiff sought to have defendant enjoined from interfering with an irrigating ditch extending over the latter’s land, through and by means of which plaintiff claimed the right to conduct a flow of water for irrigating his land.

As alleged in the complaint, defendant was the owner of a twenty-acre tract of land which, on January 31, 1912, he conveyed to plaintiff, together “with the tenements, hereditaments, easements and appurtenances thereunto belonging or appertaining”; defendant reserving therefrom, however, three-fourths of an acre out of the northeast corner of said tract. (We will designate the nineteen and one-fourth acres of land conveyed to plaintiff as “Tract 1,” and the three-fourths of an acre reserved by defendant as “Tract 2.”) At the time of conveying tract 1 to plaintiff, and for some two years prior thereto, there existed an open ditch or conduit extending along the entire east side of the twenty-acre tract, through and by means of which water was conducted for irrigating the same, of which fact plaintiff at the time of Ms purchase had knowledge. After purchasing tract 1…