Lowery

Plaintiff sued to recover damages to his land and to the crops growing thereon, alleged to have been occasioned by defendant’s dam. The answer denied that the flooding was caused by the dam, and affirmatively pleaded a prescriptive right in defendant to the maintenance of the structure. The cause was tried before a jury, verdict was rendered for plaintiff, and from the judgment which followed and from the order denying it a new trial the defendant appeals.

In 1871 the defendant erected a dam across the San Joaquin River, commenced the construction of its canal for irrigating purposes, and ever since that time has maintained the dam, and by means of it has diverted water into the canal from the San Joaquin River, and has furnished that water to the inhabitants of certain counties for purposes of irrigation. For more than five years prior to the flooding of plaintiff’s land, the dam was contiimously maintained at its present height. Plaintiff was the lessee of the flooded land. In his lease it was provided that he should .surround it with levees sufficiently high and strong to protect the land from the overflow of water, and to maintain and guard it against breaks, and that the…