Paolini

Action for damages. The jury, under instruction of the court and upon motion of defendant, at the conclusion of plaintiff’s evidence, rendered a verdict for defendant. Plaintiff appeals from the judgment upon the verdict.

Plaintiff alleged ownership of certain one hundred and sixty acres of land, along the eastern boundary of which defendant was the owner of an irrigating ditch used for the-purpose of storing and conveying water; that defendant had failed and neglected to keep said ditch in repair, by reason of which said failure and neglect “the same has become unfit for the purpose of carrying or containing water, and for a longtime has been so unfit, and water allowed to flow therein has for a long time constantly seeped or percolated through the-banks and bottom thereof and flooded lands adjacent thereto,” and “well knowing the defective condition of said ditch, defendant has carelessly and negligently, and against the will of plaintiff, caused water to flow in and through said ditch, or in or through said ditch, which said water has constantly seeped or percolated through the banks or bottom thereof during said time, and has constantly flooded a large tract of vineyard, to…