Parks

This appeal is from a judgment enjoining defendant from obstructing and interfering with plaintiff’s maintenance and use of an irrigating ditch across a twenty-four-foot strip of land, the fee title to which is claimed by both parties.

The history of the transaction as appears from the record shows that some years prior to this litigation one Hurlburt and the respondent Parks owned as tenants in common a tract of land comprising 176 acres. Later, by an interchange of deeds, Hurlburt became the owner of the north seventy-six acres of the tract and Parks became the owner of the south one hundred acres. During the period that Hurlburt and Parks owned the entire property in common there existed a roadway running from the northern tract, upon which farm buildings were situated, through and near the center of the southern tract, and to and connecting with a county road on the south. On October 31, 1908, about three months after the deeds between Hurlburt and Parks conveying these separate tracts in severalty Parks executed a deed to Hurlburt of the strip of land in dispute which followed the line of this roadway, by a conveyance containing in its granting clause the following recital:…