Peterson

This is an appeal from an order denying plaintiff’s motion for a new trial.

In the year 1885 the plaintiff owned a tract of land in Santa Cruz county consisting of one hundred and fifty-nine acres, which land for some distance bordered on a stream of water known as Marshall creek. From this creek to his residence, which was some distance back from the creek, plaintiff had a flume by means of which he carried water from the creek to his residence. On February 12, 1885, plaintiff and his wife conveyed to James P. Pierce a portion of said tract which bordered on Marshall creek, but they retained the back portion of the farm on which their residence was situated. Part of plaintiff’s flume was built upon lands con veyed to Pierce. The deeds from plaintiff and his wife to Pierce contained the following reservation:

In 1889 Pierce conveyed the said land along Marshall creek to the Ben Lomond Land and Lumber Company. This company installed a four-inch pipe by which it carried water from Marshall creek to the town of Ben Lomond, using the water in a logging pond, and also as a supply for people living in Ben Lomond, and for other purposes. In 1892 D. W. Johnston purchased the property…