Linton

The plaintiff and appellant instituted this action against the defendant and respondent for damages alleged to have been sustained through the refusal and failure of the respondent to maintain a weir in its irrigation canal system, in Kern County, which the appellant contends it was obligated to maintain and keep in good condition and repair.

It appears that on or about March 5, 1895, one Henry Miller entered into an agreement with one Horatio Stebbins, wherein it was recited that both of the parties were interested in the canal and works of the Kern Valley Water Company, from which water might be acquired for irrigation purposes; that whereas Miller had constructed a canal running from the main canal of the water company, through the lands of Miller & Lux to the easterly boundary of lands owned by Stebbins, and from which the latter could by the construction of canals and ditches thereinafter described irrigate his property, he, being desirous of securing the use of the canal running from the main canal, paid to Miller fifteen hundred dollars for a license and privilege of such use for the purpose of conveying such waters as he might be entitled to receive from canals and…