McAlister

On lands owned by the plaintiff there is a short gulch, at the upper and southerly end of which is a bluff. Immediately below the bluff the gulch is about forty feet in width and it gradually widens and has a steep slope to the north. Water percolates through the gravel and soil in the upper end of the gulch, which is “wet and swampy”, and comes to the surface in various places. The defendants G. A. Dungan and Eleanor Dungan are the owners and the defendant Biasca is the lessee of lands lying below the McAlister lands.

In an action in which the defendants’ predecessor in interest was the plaintiff and the plaintiff’s predecessors in interest were the defendants on December 17, 1902, it was adjudged that the plaintiff therein was “the owner of and vested with the legal title to that certain spring of water . . . situate on the lands of said defendants near the northeast corner of the northeast quarter of the northeast quarter of section 18 . . . and of and to all the waters thereof, and of and to the right to conduct the waters of said spring across, through, and over the lands of said defendants . . . to the lands and premises of said plaintiff. And that said defendants have not,…