Appeal by plaintiff from the judgment and from an order denying its motion for a new trial.

The object of the action was to enjoin the defendant from obstructing a certain water-ditch in the city of Bakersfield and extending along Chester Avenue, from Fifth Street south to Fourth Street. The plaintiff claims to be the owner of the ditch and to be entitled to use it, and that its right is superior to that of the public to use the street as a public highway.

The facts shown by the evidence are as follows: In 1887 the owner of some four hundred acres of farming land, subdivided it into lots and streets for the purpose of selling the lots for residence purposes, and at the same time made a map of the subdivision showing Chester Avenue as a public street, including the part thereof between Fourth and Fifth streets. There was then, and had been for many years, a small irrigating ditch in and along that part of the avenue. In order to make the lots suitable for residence purposes, and salable, it was necessary that a supply of water for irrigating and domestic use thereon should be available. To secure this the owners of the tract verbally agreed with the plaintiff to give it a right of way along Chester Avenue for a ditch in which to conduct the water to the abutting lots. In consideration thereof, the plaintiff agreed to sell and .supply water from the ditch to lot owners. In pursuance of this agreement, which was indefinite as to the exact location and size of the right of way, the plaintiff took possession of the small ditch aforesaid, and for five years thereafter,—that is, until some time in the year 1892,—used that ditch to supply the water to the persons who bought lots on the avenue. During that period a number of lots abutting on that part of the avenue above mentioned were sold and the avenue became established as a public highway by the dedication of the original owners of the tract and by the acceptance and user thereof by the public. The court found that it became such highway about January 1,1888. It is claimed that this finding is not justified by the evidence. The precise time at which it became a public highway is not important to the case, provided it appears that it was prior to the year 1892, when the new ditch, mentioned in the complaint, was made. There is evidence sufficient to justify a finding that it became such public highway in March, 1889. The verbal agreement for the right of way, and the taking of the small ditch, seem to have been prior to the dedication and acceptance of the avenue as a highway, and it does not appear that the plaintiff joined in the dedication. Consequently, the highway was subject to the right of the plaintiff to use this small ditch as a conduit for the water. In 1892 the demand for water had increased and the small ditch was not large enough to carry the water necessary to supply that demand, which included water for irrigating farming lands below the tract subdivided. Some time during this latter year the plaintiff made the ditch in controversy. It continued to use this new ditch thereafter until the obstruction complained of, which was in November, 1903. The new ditch had five or six times greater capacity than the old ditch. It was not built on the same ground as the old ditch, but was placed in the avenue on a different line. No consent or right for its construction and maintenance in the highway was ever given by the board of supervisors of the county, nor by the city of Bakersfield. The city was incorporated in February, 1898. No objection to this ditch is shown to have been made by the public authorities, until the action of the city in 1903, which is the subject of this complaint.

Upon these facts the court in effect found that the plaintiff had no right to maintain the ditch in a public street and gave judgment for the defendant. We think the judgment is correct. It may be true, as claimed, that the owners of the abutting lots orally agreed to the construction and maintenance of the large ditch in the street. Such an agreement, however, could not bind the public authorities. The agreement was not executed until long after the avenue became a public highway. Therefore, the right of way for the new ditch upon a different line from that of the old one was not paramount to the right of the public to use the highway, but was an unlawful obstruction thereto. The right given in 1887 was a general right to make or use a ditch at some place in the street and was indefinite both as to the size and precise location of such ditch. The size and location of the ditch became fixed and certain when the small ditch was taken and used for the purposes agreed upon. (Winslow v. Vallejo, 148 Cal. 725 , [ 113 Am. St. Rep. 349 , 84 Pac. 191 ].) The oral grant of a right of way then became fixed and complete. It did not include or carry with it any right to enlarge the old ditch, change its course, or make another ditch upon a new line, after it thus became fixed and definite. (Civ. Code, sec. 806 ; Vestal v. Young, 147 Cal. 715 , [ 82 Pac. 381 ] ; Allen v. San Jose L. and W. Co., 92 Cal. 138 , [ 28 Pac. 215 ] ; Winslow v. Vallejo, supra, p. 727 .)

There was some evidence tending to show that the general right of way. given to plaintiff in 1887 by the owners of the subdivision was the right under which they claimed authority to make the new ditch in 1892. The court below, however, did not give the testimony this construction, and even if we concede that it is susceptible thereof, it must also be conceded that it is ambiguous in this respect, and is capable of the construction that it carried only the right to appropriate the am all ditch, and that it did not confer any right to make the ditch in controversy. In this condition of the evidence we cannot disturb the findings of the court below.

The user of the new ditch from 1892 until 1903, without objection from the public authorities, created no prescriptive right in favor of the plaintiff to continue to maintain the same as a ditch along the highway. (Hoadley v. San Francisco, 50 Cal. 275 ; People v. Gold Run, 66 Cal. 147 , [ 56 Am. Rep. 80 , 4 Pac. 1152 ] ; Yolo County v. Barney, 79 Cal. 378 , [ 12 Am. St. Rep. 152 , 21 Pac. 833] ; Ex parte Taylor, 87 Cal. 95 , [ 25 Pac. 258 ] ; Board v. Martin, 92 Cal. 218 , [ 28 Pac. 799 ] ; Ames v. San Diego, 101 Cal. 394 , [ 35 Pac. 1005 ] ; Bowen v. Wendt, 103 Cal. 236 , [37 Pac. 149] ; Cloverdale v. Smith, 128 Cal. 235 , [ 60 Pac. 851 ].)

The court did not err in refusing leave to amend the complaint by averring the facts concerning the old ditch as above set forth. As above stated, the right to maintain the new ditch could not be predicated upon the previously acquired right to use the old ditch. The proposed amendment, therefore, showed no additional right in plaintiff.

The judgment and order are affirmed.

Sloss, J., and Angellotti, J., concurred.

Hearing in Bank denied.