Sisk

This controversy arises over an alleged claim of right by plaintiff to the use, for the purpose of irrigation, of water carried through a certain irrigating ditch running through and upon the land of the defendant. The purpose of the suit is to quiet plaintiff’s title to and interest in said ‘ditch, to enjoin defendant from interfering with or obstructing the exercise of his right to use the same, and for damages alleged to have been suffered by plaintiff for defendant’s wrongful obstruction thereof.

The plaintiff obtained judgment as prayed for, and from said judgment and the order denying him a new trial the defendant has appealed.

It appears from the allegations of the complaint that, on the second day of April, 1904, the plaintiff was the owner in fee of a tract of land in Stanislaus county, described as the N. E. % of section 18, the S. % of said section 18, and, jointly with one W. F. Rose, of the N. E. % of section 19, all said land being in township 4 S., R. 9 E., M. D'. B. & M.; that on the tenth day of December, 1904, plaintiff sold and conveyed to defendant said N. E. % of section 18, “reserving, as provided in said conyeyance, ‘the right to use the ditch now…