McLear

This was a suit to restrain the defendants from diverting the waters of a certain stream. The *556 trial court gave judgment for the plaintiff, .and the defendants appeal.

The plaintiff’s right is based upon adverse user. His testimony, with that of the witnesses Theilbar and Rebecca King, tends to show such user; and it was shown that the defendants agreed in writing that they would pay the plaintiff for the use of the water during seasons when there was not enough for all parties. This agreement was in force during a limited period only, but it was a clear acknowledgment of the plaintiff’s right. This evidence was at least sufficient to raise a substantial conflict, and therefore the finding as to the ownership of the water cannot be disturbed. It is contended, however, that the plaintiff is estopped by a recital in the agreement referred to from denying the defendants’ right to the water. But the recital was, that the defendants were “ the owners of the surplus waters,” etc. The defendants contend that the word “ surplus ” was interlined without their knowledge after the execution of the agreement. But the word was entirely in accord with the tenor of the agreement. For if the…