Appeal from, the District Court of the Eleventh Judicial District, County of Placer.

This was an action brought by one ditch company against another, to determine the right to the use of water and for damages, and to obtain a perpetual injunction.

The complaint alleges that the plaintiffs have been, since December, 1853, the owners of a ditch known as “ Priest & Co.’s Ditch,” leading from a point on the north bank of a stream known as North Shirt Tail Canon; that said ditch not being of sufficient capacity, they took occarsion to enlarge it, in December, 1853, and completed the enlargement • in September, 1854, to a capacity of 1584 inches of water; that their ditch was the first constructed leading from said stream, and that they are entitled, as first appropriators, to its waters to the extent of the capacity of their ditch ; that the defendants, subsequently to the enlargment of plaintiffs’ ditch, constructed a ditch leading from a point about two miles above the head of plaintiffs’ ditch, thereby diverting the waters naturally flowing through said stream, and diminishing the amount of water to which plaintiffs were entitled.

The answer avers, that defendants’ ditch was located,' surveyed, and commenced in April, 1854, and before the enlargement of plaintiffs’ ditch, which, before its enlargement, they aver had a capacity of only 200 inches of water; and they deny that plaintiffs are entitled to any more, and deny that defendants’ ditch has diverted the water so as to cause a diminution of that quantity.

After the defendants had rested their case, the Court allowed the plaintiffs to call a witness to prove that after the defendants had completed their ditch and the plaintiffs had completed their enlargement, the defendants constructed a ditch to the head of their first ditch from a point on the south branch of said stream above plaintiff’s ditch, and above the junction, by means of which they emptied the waters of the south branch into the north branch above defendants’ original dam, and from that point carried the waters through their old ditch to the diggings below. The defendants objected to the introduction of this testimony, on the ground that it was not offered hy way of rebuttal, and that it was not admissible under the pleadings.

The jury found a verdict that the plaintiffs were entitled to 250 inches of water, from the north branch of the north fork of the canon, and to all the water of the south branch.

Judgment accordingly. Defendants appealed.