McCarthy

The plaintiff commenced an action against the defendants to enjoin the defendants from obstructing certain alleged watercourses. The defendants answered by denying many allegations and at the same time filed a cross-complaint asking that the plaintiff be enjoined from cutting and maintaining certain ditches and discharging across the lands of the defendants excess waters. A trial was had before the trial court sitting without a jury. On certain issues the trial court found for the plaintiff and on some issues it found for the defendants, but the defendants, being dissatisfied with the judgment, have appealed. The plaintiff and defendants owned adjoining farms located northeast of San Jose. The plaintiff's farm is on the south side and is the higher ground, and the farm of the defendants is on the north side and is the lower ground. All of the lands are crossed by four watercourses, which parallel each other and extend from the southeast to the northwest. The first one we shall call the slough AB, which runs under the bridge which the engineer, Mr. Hermann, adopted as the bench for his survey; the second one we shall call CD, and is the watercourse which was by the parties on the…

The petition for a rehearing is denied. The appellants assume that the court overlooked the evidence of and concerning surplus artesian well water. That water was not specifically designated in the pleadings or in the findings. True, it was referred to by some of the witnesses, but no ruling by the trial court was either asked for or made *Page 463 thereon. We, therefore, did not think this matter involved upon the appeal presented to us. A petition by appellants to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on October 15, 1923. All the Justices concurred.