Altman

The plaintiff instituted this action for the purpose of securing a decree perpetually enjoining and restraining the defendants from using a certain ditch, known as the “Hungry Hollow Ditch” and the right of way over which said ditch traverses and which is the property of the plaintiff. The alleged wrongful use of said ditch by the defendants consists of the “diversion of water from said ditch by and through an irrigating canal which connected with the same and extended to a certain piece of real property owned by defendant, Schaupp, and leased by the defendant, Altman. ’ ’ Said real property embraces 160 acres and, for the sake of convenience, will hereinafter be referred to as “the 160-acre tract. ’’

The amended complaint sets out in detail the acts of the defendants constituting the alleged wrongful diversion of the water from said ditch. The answer to said complaint denies specifically the averments thereof and also sets up a number of special defenses which may be stated in substance as follows: 1. That plaintiff is estopped from denying that defendants have the right to the use of said ditch and right of way because of the representation by plaintiff to the predecessor in…