Silva

This is an action to restrain defendant from obstructing the flow of water in an irrigating ditch and plaintiff’s use thereof and to have the court decree that the said ditch is appurtenant to plaintiff’s land. Plaintiff had judgment, from which defendant appeals on bill of exceptions.

Plaintiff is the owner of sections 17 and 20 in township 13 south, range 19 east, in Fresno county, and defendant is the owner of the north half of the northeast quarter of section 16 in said township. It will thus be seen that defendant’s land lies northeast from plaintiff’s land and one-half mile from the east line of section 17. Adjoining section 16 on the north is section 9. Plaintiff claims an easement by prescriptive right over defendant’s land, as appurtenant to plaintiff’s land, for an irrigating ditch which receives its water from the Fresno Canal and Irrigation Company’s Canal at a point' in section 9, thence crossing defendant’s land and the intermediate land in section 16, running in a southwesterly direction to sections 17 and 20.

The court made the following findings: (1) That plaintiff has been the owner of sections 17 and 20 above described for more than five years last past; (2)…