McRae

This action was brought to recover damages against the defendants for constructing a ditch across certain lands belonging to plaintiff and to secure a perpetual injunction restraining defendant from maintaining, using, enlarging, or turning into, running, carrying or conducting water through said ditch and also for general relief. The answer denied all the allegations of the complaint and set up leave of plaintiff to construct said ditch. At the trial the plaintiff called a civil engineer, by whom he proved the existence of a ditch on plaintiff’s land and its dimensions and that it was from one hundred and ten to one hundred and twenty-two feet wide and from four to five feet deep. Defendant then admitted that he, Frank Blakeley, built the ditch across plaintiff’s land and admitted that plaintiff was the owner of the land across which the said ditch was made. This was all the testimony and both parties rested. Judgment was for plaintiff that defendant fill up said ditch and a mandatory injunction granted. The appeal is from the judgment.

The question to be determined is: Does the evidence justify the findings? The complaint alleges that the defendant “without any right or claim…