Peck

Plaintiff and defendant are the owners of adjoining tracts of land, situate in Santa Cruz county, separated by a division fence.

Plaintiff filed a complaint against defendant, in which she alleged that defendant had excavated and constructed a ditch or drain on and across defendant’s land to the line of plaintiff’s land, and thence under the division fence into and upon plaintiff’s land, and thereby diverted from its natural course the water falling on defendant’s land, and caused the same to be discharged and to flow over and upon the lands of plaintiff, to her damage in the sum of $1,000. Plaintiff prayed for damages and an injunction.

Defendant not only filed an answer denying the allegations constituting the gravamen of plaintiff’s action, but also, by way of cross-complaint, set up, “That across the land of defendant, through his said orchard and thence on and across the said land of the plaintiff there runs a natural water-way, that naturally carries the flood or surface water that falls and flows on the land of the defendant over, upon and across the said land of plaintiff, and which said natural water-way has always existed.”

It is further alleged that plaintiff in…